When the Naismith Memorial Basketball Hall of Fame inducted long-time Chicago Bulls shooting guard Michael Jordan in 2009, Jewel Food Stores gave an assist by agreeing to sell (in its 175 Windy City-area grocery stores) a special Sports Illustrated issue that honored Jordan and his awesome career. SI in return provided Jewel a free throw – a full-page ad on the inside back-cover of the issue for free.

But no one had asked for Jordan's okay. Nor did he like the ad. No.

Blawgletter knows that because His Airness called a foul. He sued Jewel* under the federal Lanham Act, which deals mainly with trademarks, and under Illinois law. His theory of offense?  That Jewel used the ad to link him to Jewel's trademarks in the "Jewel-Osco" logo and its "Good things are just around the corner" slogan.

The district court ruled the case out of bounds, holding that Jewel's conduct amounted to non-commercial speech and that Jewel's right to free speech under the first amendment therefore entitled Jewel to sweep Jordan off the court.

Reversing, a panel of the Seventh Circuit held that Jordan could take another shot. Their Honors observed that, "[e]ven if Jewel's ad qualifies as noncommercial speech, it's far from clear that Jordan's trademark and right-of-publicity claims fail without further ado." Jordan v. Jewel Food Stores, Inc., No. 12-1992, slip op. at 9 (7th Cir. Feb. 19, 2014). But, the court noted, Jewel plainly couldn't win the contest on free-speech grounds if the ad fell outside of the noncommercial speech bucket. It then blocked the district court's noncommercial-speech classification:

In short, the ad’s commercial nature is readily apparent. It may be generic and implicit, but it is nonetheless clear. The ad is 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.

Id. at 19. The panel thus rebounded the case to the district court "to address whether the Lanham Act claim warrants a trial and if not, whether the district court should retain or relinquish supplemental jurisdiction over the state-law claims." Id. at 25.

Bonus:    In a footnote, Judge Diane S. Sykes noted that many people deem Jordan "the greatest basketball player of all time" but that some "suggest[] that the 'best ever' title should go to Kareem Abdul-Jabbar based on lifetime statistics." Id.  at 3 n.1. She added that "[t]he Milwaukee judges on this panel would not dissent from that." Id.

Judge Sykes served on the Wisconsin Supreme Court before moving to the Seventh Circuit and grew up in Brew City. A second panel member, Judge Rudolph T. Randa, sits in Milwaukee.

The last of the three, Judge Joel Martin Flaum, lives in Chicago. He seems not to have minded the double-team by his colleagues.


* Jordan seems not to have gone after SI, but he did sue another grocery-store chain for doing pretty much the same thing that Jewel did.