Lawyers representing companies, beware of how your clients congratulate celebrities and athletes on their accomplishments through advertising. In my Gretchen Wieners’ voice, “You may think your client is not infringing on a celebrity’s publicity rights but they are” (or at least they could be). The repercussions can be dire, like, oh I don’t know a five million dollar suit!
Entertainers get a little more ammo against those companies and advertisers who try to use their names to promote their brands without well, actually using their names. This comes off the heels of a suit filed by the great basketball legend, “THE #23,” Michael Jordan.
The Seventh Circuit Court of Appeals found Jewel-Osco, a Midwest grocery chain, liable for infringing on Jordan’s name and likeness, when it placed an ad in Sports Illustrated, a sports magazine, saluting “number 23″ on his induction to the Hall of Fame. The court rejected Jewel’s First Amendment defense that the district court seemed to buy. The Seventh Circuit said that Jewel’s ad was not protectable “non-commercial speech” because, even though the grocery chain was not selling a specific product, the ad was indeed an advertisement and it served an economic purpose for Jewel. Jewel accepted Sports Illustrated’s offer of free advertising space and the ad featured the store’s logo and marketing slogan, (“fellow Chicagoan” who was “just around the corner for so many years”). Further, the grocery chain designated considerable floor space to sell the magazine issue in exchange for a full-page ad. This signals that Jewel’s speech was used to promote and enhance the Jewel Osco’s supermarket brand, not to only congratulate Michael Jordan on his accomplishments.
I think it is safe to say the number 23 is synonymous with Michael Jordan and this is why Jewel Osco used it to advertise in a sports magazine. Additionally, Jordan has a parallel case against Dominick’s, Jewel’s competitor. The only difference is that Dominick’s ad was actually used to sell something, steak of all things!
Seeing these ads, it is pretty clear what each company is trying to do. They are practically screaming, “Hey Michael Jordan fans we love him too! Shop at our stores!”
Either this case tells companies and their lawyers on how to be more creative when trying to use an entertainer’s celeb-status to promote its brand or it is telling companies and their lawyers, “Don’t even try it.” You decide, depending on which side you are on of course. We are lawyers, so we can flip it either way.
P.S. Can I just say that the district judge calling MJ “greedy” for his $5 million suit is a bit over the top. Jordan makes $80 million a year. He does not need the money by any means. This is not a greedy move, this is a warning to those trying to get make money off of his name.
Love, Peace, and Leggings :)