## Facts

- In 2009, a publisher produced a commemorative magazine issue focused on Michael Jordan’s induction into the Naismith Memorial Basketball Hall of Fame.
- Jewel Food Stores, operator of Jewel–Osco supermarkets, received free advertising space in the issue in exchange for agreeing to stock the magazine in its stores.
- Jewel placed a full-page ad congratulating Jordan that ran on the inside back cover of the commemorative issue during a multi-month newsstand period.
- The ad included an image referencing Jordan (including the number “23”) and laudatory copy celebrating his career and Chicago ties.
- The ad prominently displayed Jewel–Osco’s logo and marketing slogan, “Good things are just around the corner,” and linked the slogan to the congratulatory message.
- Jordan alleged the ad used his identity without consent to benefit Jewel commercially and sued under the Lanham Act, the Illinois Right of Publicity Act, Illinois deceptive-practices law, and Illinois unfair-competition common law.
- The district court entered judgment for Jewel, holding the ad was noncommercial speech fully protected by the First Amendment.

## Issues

1. Whether Jewel’s congratulatory advertisement was “commercial speech” (subject to regulation and ordinary liability rules) or fully protected “noncommercial” speech under the First Amendment.

## Decision

- The Seventh Circuit reversed the judgment for Jewel and remanded.
- The court held the ad was commercial speech because, in context, it functioned as image advertising promoting Jewel–Osco’s brand.
- The court emphasized the prominent logo and slogan and their deliberate linkage to Jordan within the ad’s text.
- The court relied on commercial-speech guideposts, including whether the communication was an advertisement, was economically motivated, and promoted the speaker’s business, recognizing that no single factor is dispositive.
- Because the ad was commercial speech, the First Amendment did not categorically bar Jordan’s federal and state-law claims at the pleading/threshold stage.

## Legal Principles

- Classification of speech as commercial or noncommercial turns on content, form, and context; congratulatory language does not control when the overall presentation promotes the speaker’s brand.
- “Image advertising” that builds goodwill and brand association can qualify as commercial speech even without a direct pitch for a specific product or price.
- Economic motivation may be shown by a quid pro quo arrangement for advertising space and by brand-promotional design and placement.
- When speech is commercial, the First Amendment generally does not provide complete immunity from trademark, right-of-publicity, deceptive-practices, and related unfair-competition claims; those claims proceed to merits analysis.

## Conclusion

The Seventh Circuit treated Jewel’s Hall of Fame “congratulations” ad as commercial image advertising because it conspicuously connected Jordan’s identity to Jewel–Osco’s logo and slogan in a context reflecting economic motivation, so the First Amendment did not bar Jordan’s publicity and trademark-related claims as a matter of law.


Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014)