Michael Jordan is currently shooting 0 for 1 from the litigation line.
According to U.S. District Judge Gary Feinerman, a national grocery chain's allusion to the NBA great in a magazine layout amounted to speech protected by the First Amendment.
Stunning many intellectual property scholars who saw a movement in the federal courts to grant celebrities increased protection over their images, the Chicago court held that Jewel-Osco hadn't stolen or profited from Michael Jordan's image because the magazine spread in question wasn't designed to sell anything.
Jewel-Osco argued that their layout, published in 2009, was a simple congratulatory gesture to Jordan on his Hall of Fame induction.
“The page does not propose any kind of commercial transaction, as readers would be at a loss to explain what they have been invited to buy,’’ wrote Judge Feinerman in his opinion.
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Because Jewel-Osco was expressing a view and not marketing a product, Jordan had no factual grounds to win his lawsuit.
Jonathan Jennings, a Chicago-based trademark lawyer told the Associated Press that, "The ruling goes against a prevailing trend of courts regarding such corporate messages as advertising. There may be concern that if this ruling stands or becomes accepted doctrine, then you could see more advertisements appear that are merely couched as tributes."
Attorneys representing Michael Jordan plan to appeal the case once the District Judge hands down his final ruling.