SuperValu subsidiary, Jewel Food Store, created a graphic congratulating one of the greatest basketball players of all time, Michael Jordan. Michael Jordan is more than a mere human being and more than a Hall of Fame basketball player. His name and his image can be valuable assets — his valuable assets.
So, was this “a tribute by an established Chicago business to Chicago’s most accomplished athlete,” (that is, non-actionable “noncommercial speech” protected by the First Amendment) or was this a business trying to free-load on Jordan’s fame for commercial advantage (potentially actionable “commercial speech”)?
Jordan sued Jewel Food Store for violation of the his right of publicity, alleged false endorsement, alleged false designation of origin, alleged deceptive business practices and alleged unfair competition “to remedy the damage caused by Jewel-Osco’s unauthorized advertisement.”
The opinion of Judge Feinerman is detailed analysis of the distinction between commercial and non-commercial speech, ultimately finding for the defendant on First Amendment grounds.
It remains to be seen whether SuperValu’s win will be appealed but, in the mean time, we can chalk this up as a win for a Minnesota company and its Minnesota trial counsel.