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Abstract

This Comment focuses on the commercial speech doctrine as applied to modern advertising strategies, specifically, corporate image advertising. It centers on the recent litigation between basketball superstar Michael Jordan and a Chicago-area grocery chain, Jewel-Osco. When Michael Jordan was inducted into the Basketball Hall of Fame, Jewel-Osco was invited to submit a congratulatory ad for a commemorative issue of Sports Illustrated devoted exclusively to Jordan’s career and accomplishments. Because Jordan had spent the bulk of his storied professional basketball career with the Chicago Bulls, the ad seemed a natural fit. Jordan, who did not give permission for his name to be used in the ad, sued the grocery chain for $5 million, asserting various trademark, unfair competition, and right of publicity claims. Against these claims, Jewel-Osco asserted that the ad was noncommercial speech and thus sheltered from liability under the First Amendment.

The Seventh Circuit concluded the ad was commercial speech not shielded under the First Amendment. Despite the fact that the ad neither made reference to a particular product nor identified Jewel-Osco as any type of corporate entity, the court deemed the ad a form of image advertising aimed at promoting the supermarket’s brand and enhancing consumer goodwill by exploiting public affection for Jordan at an auspicious moment in his career.

This Comment summarizes the framework of speech protection under the First Amendment, including the commercial speech doctrine, followed by a brief history of advertising, trademark law, and the right of publicity. It then discusses both the district court and Seventh Circuit opinions. Finally, this Comment concludes that the Seventh Circuit was correct in determining that Jewel’s ad was commercial speech.

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