Monday, March 24, 2014

Michael Jordan, Jewel Food Stores, Wheaties, the Right of Publicity and the Lanham Act...

Our longest title to date!  We shall endeavor, however, to simplify the remarks made here in connection therewith.  We begin with a recent 7th Circuit, U.S. Circuit Court of Appeals, decision in Jordan v. Jewel Food Stores Inc., 2014 WL 6270603 (7th Cir. 2014).

Michael Jordan (MJ). Yes, that Michael Jordan... of NBA fame, of Nike footwear, etc.  Jewel Food Stores (Jewel) got into trouble with MJ when they placed a paid one-page ad in a special Sports Illustrated commemorative issue celebrating MJ's induction into the NBA Hall of Fame.  Unfortunately, for Jewel they spent too much time on associating themselves and their brand, logo and slogan with MJ's name in this ad and the court held that this was the type of commercial speech not protected by the First Amendment.  (Per the Court, commercial speech is "speech that proposes a commercial transaction.")  The court determined that Jewel's ad was an example of "image" advertising, which the court noted is "ubiquitous in all media", that is intended to promote its own brand loyalty through the prominent use of its own brand, logo and trademarks in connection with MJ's world famous celebrity status and the goodwill attached to his name, likeness, etc. (Per the Court, "Jordan is a sports icon whose name and image are deeply embedded in the pop culture and easily recognized around the globe.")

Trivia Flashback... to the Fall of 1990 when I purchased a box of WHEATIES® with MJ on the box (see above) at a Jewel Food Store in downtown Chicago. True story.  No problem here. Wheaties got approval for this use and no doubt this was a time when MJ had not yet won his first NBA Title and Ring... though he would that very season...  and perhaps his people weren't as aggressive in protecting the commercial value of his name and likeness. I've kept the box which is in good shape despite it resting on a refrigerator for the past 10 plus years.

x-ref:  Per Wikipedia...

"Michael Jordan holds the record for most depictions on a Wheaties box, a total of 18 times, followed by Tiger Woods at 14 times."


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Kind regards,

William E. Maguire
Santa Monica, California

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