Commemorative Ad Isn't Protected Free Speech

In finding that Jewel's tribute page constituted commercial speech, the Seventh Circuit noted, “Jewel's ad is easily distinguishable from the magazine's editorial content.” The appeals court added: ” To say that the ad is noncommercial because it lacks an outright sales pitch is to artificially distinguish between product advertising and image advertising. Classifying this kind of advertising as constitutionally immune noncommercial speech would permit advertisers to misappropriate the identity of athletes and other celebrities with impunity.”

The appeals court then remanded the case for consideration of whether there was likelihood of consumer confusion in Jordan's false endorsement claim under '43(a) of the Lanham Act.

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.

Entertainment trade publications often compile special issues and sections that include tribute ads commemorating celebrated individuals and events. The U.S. Court of Appeals for the Seventh Circuit weighed in on the practice in the context of free speech regarding an ad in a special issue of the consumer imprint Sports Illustrated.

The special issue celebrated the 2009 induction of Michael Jordan into the Naismith Memorial Basketball Hall of Fame. Sports Illustrated offered free ad space to Jewel Food Stores in return for agreeing to distribute the Jordan special issue in its stores. In Jewel's commemorative ad, the chain store's logo and its slogan (“Good things are just around the corner”) appeared above a pair of basketball shoes labeled with Jordan's Chicago Bulls' number “23.” But Jordan sued, claiming the ad violated, among other things, his rights under the Illinois Right of Publicity Act and the federal Lanham Act. The U.S. District Court for the Northern District of Illinois, however, ruled that Jewel's ad was protected non-commercial speech under the First Amendment.

Reversing, the Seventh Circuit found “Jewel's ad has an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers. This commercial message is implicit but easily inferred, and is the dominant one.” The appeals court observed of the commemorative ad's layout: “Jewel-Osco's graphic logo and slogan appear just below the textual salute to Jordan. The bold red logo is prominently featured in the center of the ad and in a font size larger than any other on the page. Both the logo and the slogan are styled in their trademarked ways. Their style, size, and color set them off from the congratulatory text, drawing attention to Jewel-Osco's sponsorship of the tribute. Apart from the basketball shoes, the Jewel-Osco brand-name is the center of visual attention on the page. And the congratulatory message specifically incorporates Jewel's slogan: 'as we honor a fellow Chicagoan who was “just around the corner” for so many years.' The ad is plainly aimed at fostering goodwill for the Jewel brand among the targeted consumer group ' 'fellow Chicagoans' and fans of Michael Jordan ' for the purpose of increasing patronage at Jewel-Osco stores.” Jordan v. Jewel Food Stores Inc., 12-1992.

In finding that Jewel's tribute page constituted commercial speech, the Seventh Circuit noted, “Jewel's ad is easily distinguishable from the magazine's editorial content.” The appeals court added: ” To say that the ad is noncommercial because it lacks an outright sales pitch is to artificially distinguish between product advertising and image advertising. Classifying this kind of advertising as constitutionally immune noncommercial speech would permit advertisers to misappropriate the identity of athletes and other celebrities with impunity.”

The appeals court then remanded the case for consideration of whether there was likelihood of consumer confusion in Jordan's false endorsement claim under '43(a) of the Lanham Act.

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.