# Jordan v. Jewel Food Stores: When a Congratulatory Ad Is Commercial Speech > The Seventh Circuit held that a supermarket's tribute ad to Michael Jordan was commercial speech, stripping it of full First Amendment protection and reviving his publicity claims. Topic: Right of Publicity | Author: Lidiia Levitska | Source: Intellectual Property Law (outsideipcounsel.com) Canonical: https://outsideipcounsel.com/blog/jordan-v-jewel-food-stores-commercial-speech/ *Jordan v. Jewel Food Stores, Inc.*, 743 F.3d 509 (7th Cir. 2014), decided the threshold question that governs many modern right-of-publicity disputes: whether a challenged use is "commercial speech" that receives only reduced First Amendment protection. When Michael Jordan was inducted into the Basketball Hall of Fame in 2009, the Chicago-area supermarket chain Jewel-Osco ran a full-page ad in a commemorative issue of *Sports Illustrated* congratulating him — complete with its logo, its slogan, and an image of basketball shoes bearing his number "23." Jordan sued, and the district court dismissed his claims on the theory that the tribute was fully protected noncommercial speech. Writing for a unanimous Seventh Circuit panel, Judge Diane Sykes reversed, holding that the ad was commercial speech and remanding Jordan's claims for adjudication on the merits. ## At a glance - **Case:** *Jordan v. Jewel Food Stores, Inc.*, and *SuperValu Inc.*, 743 F.3d 509 (7th Cir. 2014), No. 12-1992 - **Court:** United States Court of Appeals for the Seventh Circuit, on appeal from the Northern District of Illinois - **Decided:** February 19, 2014; unanimous panel - **Opinion:** Judge Diane P. Sykes, for the panel (Sykes, Flaum, and Randa, District Judge, sitting by designation) - **Subject matter:** Whether a congratulatory magazine ad using a celebrity's identity is commercial speech under the First Amendment - **Holding:** The ad was commercial speech and thus not entitled to full First Amendment protection, reviving Jordan's right-of-publicity and Lanham Act claims ## The ad, the lawsuit, and the summary judgment below In September 2009, Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame, and Time, Inc.'s *Sports Illustrated* produced a special commemorative issue devoted entirely to his career. Jewel Food Stores — operator of roughly 175 Jewel-Osco supermarkets around Chicago — was offered free full-page ad space in the issue in exchange for agreeing to stock the magazine in its stores. Jewel accepted and ran a congratulatory page on the inside back cover. The ad, headlined "A Shoe In!", saluted Jordan as a "fellow Chicagoan" who had been "just around the corner" for so many years. It prominently displayed the Jewel-Osco logo and the chain's registered marketing slogan, "Good things are just around the corner," above a photograph of a pair of basketball shoes each bearing the number "23." Jordan sued for $5 million, alleging false endorsement under the Lanham Act, violation of the Illinois Right of Publicity Act, deceptive trade practices, and common-law unfair competition. The district court granted summary judgment to Jewel, holding that the ad was noncommercial speech fully protected by the First Amendment, and Jordan appealed. ## Commercial speech does not require a sales pitch The Seventh Circuit framed the case as turning entirely on the commercial-versus-noncommercial distinction. Commercial speech — most narrowly, speech that "proposes a commercial transaction" — receives reduced First Amendment protection and remains subject to trademark and right-of-publicity law; core noncommercial speech, by contrast, receives full protection that would defeat Jordan's claims. Jewel argued that its ad proposed no transaction, sold no product, and merely offered a public tribute, placing it in the protected category. The court rejected that reading as too narrow. Drawing on the Supreme Court's three-factor framework from *Bolger v. Youngs Drug Products Corp.* — whether the communication is an advertisement, whether it refers to a specific product, and whether the speaker has an economic motivation — the panel emphasized that these factors are not all required and that the category of commercial speech is broader than a literal sales proposal. What mattered was that the ad had "an unmistakable commercial function": it was image advertising designed to enhance the Jewel-Osco brand and foster consumer goodwill. As Judge Sykes explained, an advertisement "is no less 'commercial' because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service." The ad was, in substance, "a form of image advertising aimed at promoting goodwill for the Jewel-Osco brand" among consumers who might increase their patronage of its stores. ## Why the tribute framing did not save it Jewel's strongest argument was that the ad's message was congratulatory and newsworthy — a civic-minded salute to a hometown hero. The court acknowledged that the ad had an expressive, congratulatory element, but held that this did not convert it into noncommercial speech. The prominent placement of the corporate logo and trademarked slogan signaled a commercial purpose, and the ad's implicit message was one of brand promotion and implied endorsement: Jewel-Osco associating itself with Jordan's achievement to burnish its own image. The presence of a congratulatory theme, in other words, did not neutralize the ad's evident economic motivation. The decision matters because it rejects a bright-line rule that would immunize "goodwill" or "image" advertising simply because it stops short of naming a price or a product. Businesses routinely trade on celebrity association to build brand equity, and *Jordan* holds that such trading is commercial speech subject to publicity and false-endorsement law. By reversing and remanding rather than resolving liability, the court left the merits of Jordan's claims — including whether the ad falsely implied his endorsement — for the district court to decide. ## Open questions The Seventh Circuit resolved only the classification question, not liability, leaving several issues for remand and for future courts. Where exactly is the line between a protected editorial or journalistic reference to a celebrity and an unprotected commercial appropriation? How should courts treat "hybrid" messages that genuinely mix tribute, news, or public-interest commentary with brand promotion? And how far does the reasoning extend to social-media posts, sponsored content, and native advertising that blur the boundary between editorial and commercial speech? On remand, the case proceeded in the district court, where Jordan ultimately prevailed at trial — but the appellate opinion's lasting contribution is its broad definition of commercial speech, not the eventual damages. ## Implications - **Congratulatory framing is not a shield.** Wrapping a brand message in a tribute or public-interest theme does not make it noncommercial if its function is to promote the advertiser. - **Brand promotion counts as commercial speech.** Image advertising that builds goodwill, without proposing any specific transaction, still falls within commercial speech subject to publicity and Lanham Act claims. - **Logos and slogans signal commercial purpose.** Prominent corporate branding is powerful evidence that a communication is an advertisement rather than protected commentary. - **Get a license for celebrity tie-ins.** Businesses that invoke a celebrity's identity to associate their brand with an achievement should secure authorization; a well-meaning tribute can still trigger liability. ## Frequently asked questions **What is the difference between commercial and noncommercial speech?** Commercial speech proposes a commercial transaction or otherwise promotes a business's products or brand, and receives reduced First Amendment protection, making it subject to trademark and right-of-publicity law. Noncommercial speech — political, artistic, journalistic, or congratulatory expression — receives full protection. The distinction determines whether an unauthorized use of a person's identity can be actionable. **Why did the Seventh Circuit find Jewel's ad commercial?** Although the ad congratulated Jordan rather than hawking groceries, the court found it had an unmistakable commercial function: promoting the Jewel-Osco brand and building goodwill among consumers. An ad is no less commercial because it promotes brand awareness rather than proposing a transaction in a specific product. **Did Michael Jordan win the case?** Not outright in this decision. The Seventh Circuit reversed the summary judgment for Jewel and remanded so Jordan's Lanham Act, Illinois Right of Publicity Act, and related claims could proceed on the merits. Jordan later prevailed at trial in the district court, but that was a separate proceeding. ## Authorities and sources - *Jordan v. Jewel Food Stores, Inc.*, 743 F.3d 509 (7th Cir. 2014), No. 12-1992 (decided February 19, 2014). [Justia](https://law.justia.com/cases/federal/appellate-courts/ca7/12-1992/12-1992-2014-02-19.html); [FindLaw full-text opinion](https://caselaw.findlaw.com/court/us-7th-circuit/1657914.html). - Commercial-speech framework from *Bolger v. Youngs Drug Products Corp.*, 463 U.S. 60 (1983), corroborated by [Justia](https://supreme.justia.com/cases/federal/us/463/60/). - Case background and holding cross-checked at [Wikipedia: Jordan v. Jewel Food Stores, Inc.](https://en.wikipedia.org/wiki/Jordan_v._Jewel_Food_Stores,_Inc.).