Published February 16, 2012
CHICAGO – A federal judge has ruled that a national grocery store chain's reference to Michael Jordan in an ad-like magazine layout was constitutionally protected free speech — a decision that thwarts the former Chicago Bulls player's bid for control of his billion-dollar image.
In a finding that surprised some legal observers, the court in Chicago concluded Jewel-Osco wasn't endeavoring to sell anything with the page featuring basketball shoes emblazoned with "23," Jordan's Bulls jersey number.
In the layout published in a special 2009 edition of Sports Illustrated on Jordan, Jewel-Osco congratulated the six-time NBA champion on his induction into the Basketball Hall of Fame, and it included a large Jewel-Osco logo under the text.
"The page does not propose any kind of commercial transaction, as readers would be at a loss to explain what they have been invited to buy," U.S. District Judge Gary Feinerman said in an opinion posted late Wednesday on Jordan's lawsuit against the company.
Celebrities such as Jordon meticulously guard their images, and others have successfully sued companies for appearing to employ praise as a way to slip in references to a public figure into an advertisement.
But Feinerman said Jewel-Osco was expressing a view rather than trying to sell a product in this case.
Competing chain store Dominick's, which Jordan is suing separately, also ran a congratulatory page in the same magazine. Feinerman said the fact that both Jewel-Osco and Dominick's ran the messages further illustrated that the layout couldn't have been commercial because Jordan "does not play on two or more sides of the same fence, commercially speaking."
"Jordan is Hanes, not Jockey or Fruit of the Loom; Nike, not Adidas or Reebok; Chevrolet, not Ford or Chrysler; McDonald's, not Burger King or Wendy's," the judge wrote.
The judge's ruling suggests Jordan may not prevail in the lawsuit, which claims Itasca-based Jewel-Osco unlawfully invoked Jordan's identity, not primarily to congratulate him, but to market the company.
According to Jonathan Jennings, a Chicago-based trademark and rights of publicity attorney, the ruling goes against a prevailing trend of courts regarding such corporate messages as advertising.
"There may be concern that if this ruling stands or becomes accepted doctrine, then you could see more advertisement appear that are merely couched as tributes," he said.
Jordan attorney Frederick Sperling said he disagrees with the ruling, saying several witnesses admitted the layout was intended to promote Jewel-Osco's goods and services. "That," he said, "is an admission that the ad was commercial speech."
Jewel-Osco spokesman Mike Siemienas said the company is pleased by the ruling. He added that, "We continue to believe we acted appropriately."
Feinerman left open the possibility Jordan could continue his suit against Jewel-Osco, saying he wants to hear arguments on whether constitutionally protected speech is automatically immune from damage claims.
Jordan's legal team would be in a position to appeal only after the judge makes a final ruling on the lawsuit.