Time’s up from yesterday’s post.
Jewel ran the above ad in a commemorative issue of Sports Illustrated, without the authorization of Michael Jordan. MJ sues. MJ concedes that if the ad is held to be non-commercial speech, then his various claims fail. The Court, interestingly, says that it’s not so sure that’s correct (page 10) but that was the concession, so there you go. The question is therefore, is this ad commercial speech (and therefore entitled to a lowel level of First Amendment protections.
Held: Give me a break. Why did Jewel run the ad?
We don’t doubt that Jewel’s tribute was in a certain sense public-spirited. We only recognize the obvious: that jewel had something to gain by conspicuously joining the chorus of congratulations on the much-anticipated occasion of Jordan’s induction into the Basketball Hall of Fame. Jewel’s ad is commercial speech. (p. 20)
Accordingly, motion in favor of defendant was reversed, and the suit returns to the District Court to determine if there is a valid false endorsement claim. That should be an interesting question as well. If you are flipping through a special issue of SI, and every single ad says ‘Congratulations, Mike’ ‘Congratulations, Mike’, etc, do you believe that MJ authorized each ad, or merely that every advertiser paid SI so that they could get some beneficial glow?
Every year I run the same gag on Super Bowl Sunday: in order to avoid a false endorsement claim, rather than suggest that the NFL endorses me, I say “The Super Bowl is the official professional football championship of The Trademark Blog.” I am not deterred by this decision.