CHICAGO (CN) - A supermarket chain may have violated Michael Jordan's trademark by using a page in Sports Illustrated to mark his induction into the Hall of Fame, the 7th Circuit ruled.
Sports Illustrated ran a special commemorative issue in September 2009 dedicated to Jordan's legendary career.
The magazine offered Jewel Food Stores, the operator of 175 Jewel-Osco supermarkets in Chicagoland, free advertising space in exchange for stocking the issue in its stores.
Accepting the offer, Jewel ran a full-page spread on the inside back cover congratulating Jordan on his induction into the Basketball Hall of Fame.
But "to Jordan the ad was not a welcome celebratory gesture but a misappropriation of his identity for the supermarket chain's commercial benefit," the 26-page ruling states. "He responded with this $5 million lawsuit alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition."
A federal judge found
Jewel's ad protected by the First Amendment as "noncommercial" speech.
"It is difficult to see how Jewel's page could be viewed, even with the benefit of multiple layers of green eyeshades, as proposing a commercial transaction," U.S. District Judge Gary Feinerman had said.
But a three-judge panel of the 7th Circuit disagreed and reversed Wednesday.
"Jewel's ad prominently features the 'Jewel-Osco' logo and marketing slogan, which are creatively and conspicuously linked to Jordan in the text of the ad's congratulatory message," Judge Diane Sykes wrote for the panel. "Based on its content and context, the ad is properly classified as a form of image advertising aimed at promoting the Jewel-Osco brand."
Unlike other community groups that Jewel supports, Jordan's identity has commercial value and he is highly sought after as a celebrity endorsement.
While Jewel's ad does not literally ask the consumer to purchase anything, "the notion that an advertisement counts as 'commercial' only if it makes an appeal to purchase a particular product makes no sense today, and we doubt that it ever did," Judge Diane Sykes wrote for the panel. "An advertisement is no less 'commercial; because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service."
Context is just as important as the literal text of the ad in determining whether speech is commercial, the opinion found.
"Without the rose-colored glasses, Jewel's ad has an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers," the opinion states. "This commercial message is implicit but easily inferred, and is the dominant one."
On remand, the U.S> District Court must reach the merits of Jordan's claims.
Neither party's attorney returned a request for comment.