Risks Of Tribute Advertisements Are Focus Of Seventh Circuit Decision

by Perkins Coie
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Think the First Amendment protects your business from liability for running an ad congratulating a celebrity or other public figure?  Better think again. 

While people can freely talk about athletes and celebrities, and even wear their gear, advertisers do not have the same rights.  In Jordan v. Jewel Food Stores, Inc., basketball superstar Michael Jordan sued Jewel Food Stores, Inc., the operator of Jewel-Osco supermarkets in Chicago, because of an ad showing a photograph only of basketball shoes bearing the number 23 and congratulating Jordan on his induction into the Naismith Memorial Basketball Hall of Fame.  Jordan brought trademark, unfair competition, deceptive practices and right of publicity claims, seeking $5 million in compensatory damages, as well as punitive damages for the state law claims and treble damages under the Lanham Act.

Without reaching the merits of Jordan’s claims, the federal district court found that Jewel’s ad was noncommercial speech and fully protected by the First Amendment.  The U.S. Court of Appeals for the Seventh Circuit reversed and remanded.  

Commercial v. Noncommercial Speech

Following the Supreme Court’s framework in Bolger v. Youngs Drug Prods. Corp., the court considered the context and content of Jewel’s ad and concluded that it was commercial speech.  Judge Sykes of the Seventh Circuit wrote that the ad had “an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers.”  The court concluded that the congratulatory message cleverly and conspicuously linked Jewel’s logo and "just around the corner" slogan with Jordan, thereby promoting shopping at Jewel-Osco stores.  It could not simply be construed as an act of good corporate citizenship. 

“Inextricably Intertwined” Doctrine

The court also took the opportunity to clarify the “inextricably intertwined” doctrine, relied upon by the district court.  This doctrine provides that where commercial and noncommercial speech are inextricably intertwined, the speech is subject to strict scrutiny under the First Amendment if, “taken as a whole,” the speech is noncommercial. 

The court explained that the doctrine applies when it is legally or practically impossible for the speaker to separate out the commercial and noncommercial elements of his speech.  But this does not mean that by combining commercial and noncommercial elements in a single work, the whole work is noncommercial speech.  The court rejected Hoffman v. Capital Cities/ABC, Inc., where the U.S. Court of Appeals for the Ninth Circuit held that a magazine's use in a fashion spread of an altered "Tootsie" publicity photo was expressive, not commercial speech.  “No law of man or nature prevented the magazine [in Hoffman] from publishing a fashion article without superimposing the latest fashion designs onto film stills of famous actors,” Judge Sykes wrote.  Similarly, nothing compelled Jewel to mix commercial elements into a congratulatory message.

Lessons from Jordan Decision

Adding to an already complex interplay between intellectual property and constitutional law, the Seventh Circuit’s decision in Jordan casts doubt on First Amendment protections for usually well-intentioned tribute ads.  Businesses should carefully review any proposed ads that mention individuals who have developed commercial value in their identity, and avoid in such advertising the use of logos, mottos, references to goods and services, and other content typically used for marketing.     

Additional Information

Click here to read a copy of the full text of Jordan v. Jewel Food Stores, Inc. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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