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February 20th, 2014
Hold off on that Congratulatory Ad
The Olympics and the Academy Awards always inspire advertisers to run ads congratulating winners. But not so fast.
Michael Jordan's lawsuit over a congratulatory advertisement placed by Jewel-Osco Supermarkets in a Sports Illustrated special edition celebrating his induction into the Basketball Hall of Fame was just reinstated on appeal. The advertisement is grounds for Michael Jordan to sue Jewel-Osco on right of publicity and false association claims.
The decision of the Federal District Court in Chicago that the advertisement was not commercial speech because it did not mention a product or service was reversed on appeal. The Appellate Court held that the test should be "whether (1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech." However, no one factor is sufficient, and the absence of any mention of a product or service was not sufficient to rule out a claim.
The benefit of the brand awareness or loyalty and "enhancing the Jewel-Osco brand in the minds of consumers" makes an ad congratulating a famous athlete a "promotional device for the advertiser." Michael Jordan may pursue his claims to compensation for the benefit the advertiser derives from congratulating him and may also seek to prove that the advertisement "caused a likelihood of confusion that Jordan was a Jewel-Osco sponsor or endorsed its products and services."
Since no one wants to go before a jury fighting a beloved celebrity, the cause will in all likelihood settle for an undisclosed sum. We will let you know if there is a different outcome.
If you have any questions about the appeal, or about any other right of publicity issue, please contact Rick Kurnit at (212) 826 5531 or rkurnit@fkks.com, or any other member of the Frankfurt Kurnit Advertising, Marketing and Public Relations Group.
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