Is an advertisement congratulating Michael Jordan on his 2009 induction into the Basketball Hall of Fame commercial speech or a community service ad?

As Quarles & Brady partner Richard Young and associate Matthew Ingersoll explain in an entry on the firm’s website, the Seventh U.S. Circuit Court of Appeals recently weighed in on this issue.

The attorneys say Sports Illustrated produced a commemorative edition devoted to Jordan’s career, making an agreement with Jewel to stock it in its grocery stores. The issue included a full-page tribute to Jordan by Jewel.

The ad contained Jewel’s logo and a slogan, with part of it saying, “Jewel-Osco salutes #23….” In response, Jordan filed a $5 million lawsuit, alleging unlawful misappropriation of his name for commercial benefit. Jewel argued the tribute wasn’t any different from other Jewel ads supporting nonprofit and community organizations and was thus protected by the First Amendment.

The district court agreed with Jewel, but the Seventh Circuit reversed, determining it was commercial speech because it identified the advertiser, the attorneys say. Therefore, Jordan’s claims can proceed and Jewel cannot use a First Amendment argument.

“Businesses need to be cautious when running community service ads or any advertising referencing a person or organization without first obtaining their consent,” the attorneys say.