Advertising, Marketing & Promotions Alert ... - Davis & Gilbert LLP

affection for Jordan at an auspicious moment in his career,” and it thus fell within the framework's first factor. The. Seventh Circuit easily disposed of the.
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MARCH 2014


>> ALERT MICHAEL JORDAN SCORES ON APPEAL IN LAWSUIT OVER CONGRATULATORY AD While one might think that congratulating an athlete on winning an award would not provoke a lawsuit, a recent case serves as an important reminder that congratulatory advertisements using the name or likeness of a famous person may pose significant risk. Recently, the United States Court of Appeals for the Seventh Circuit held that a right-of-publicity and false association lawsuit filed by Michael Jordan against a supermarket chain that published an ad congratulating him on his induction into the Basketball Hall of Fame should be permitted to go forward. BACKGROUND To honor Jordan’s induction into the Basketball Hall of Fame in September 2009, Time, Inc., the publisher of Sports Illustrated, produced a special commemorative issue devoted exclusively to Jordan’s career. Jewel Food Stores, Inc., the operator of 175 Jewel-Osco supermarkets in and around Chicago, submitted a full-page ad congratulating Jordan that ran on the inside back cover of the issue. The ad combined textual, photographic and graphic elements, and prominently included the Jewel-Osco logo and marketing tagline, “Good things are just around the corner.” The logo and tagline, both registered trademarks, were positioned in the middle of the page above a photograph of a pair of basketball shoes bearing Jordan’s number “23.” The text of the ad read: A Shoe In! After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! Attorney Advertising 1493

THE BOTTOM LINE The Court’s decision serves as a cautionary reminder that advertisers should be careful about running congratulatory advertisements featuring famous individuals that also promote their own brand or products. Prior to running congratulatory ads, advertisers and agencies should consult with legal counsel to avoid potential risks and ensure compliance with all relevant laws.

Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was “just around the corner” for so many years. Jordan was not amused by the ad and sued Jewel for over 5 million dollars, alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive practices statute, and common law unfair competition. Jewel denied liability claiming that the ad was “non-commercial speech” and was entitled to First Amendment protection. The District Court sided with Jewel and Jordan appealed.

THE SEVENTH CIRCUIT’S DECISION The Seventh Circuit reversed. In so doing, the Court set forth three factors for determining whether speech containing both “commercial” and “noncommercial” elements should be considered “commercial speech.” Interpreting U.S. Supreme Court cases, this framework requires an analysis of whether: 1) the speech was an advertisement; 2) the speech referred to a specific product; and 3) the speaker had an economic motivation for the speech. >> continues on next page

MARCH 2014

ADVERTISING, MARKETING & PROMOTIONS >> ALERT The Seventh Circuit emphasized that these factors provide “just a general framework” for determining whether speech is commercial and that no one factor is dispositive. Reviewing Jewel’s ad within these guidelines, the Seventh Circuit found that the ad had an “unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers.” The Court declared that the ad was a form of image advertising “aimed at promoting goodwill for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career,” and it thus fell

within the framework’s first factor. The Seventh Circuit easily disposed of the second and third factors. It decided that although no specific product or service was offered, the ad promoted patronage at Jewel-Osco stores generally. It also found that there was “no que