By Jonathan Bilyk
Michael Jordan has won permission from a federal judge to move ahead with his lawsuit against supermarket chain Jewel Food Stores over what he alleges is unauthorized use of his identity in an ad the chain ran congratulating him on his Hall of Fame induction in 2009.
U.S. District Judge Gary Feinerman rejected Jewel’s attempt to dismiss the litigation brought by the Chicago Bulls legend, saying Jordan’s allegation the grocer’s use of red-and-white basketball shoes, emblazoned with the numeral “23” on the tongues, without first obtaining permission from Jordan, is enough to substantiate a potential legal foul.
“It is beyond any reasonable dispute that Jordan has adequately alleged a concrete injury in fact that is traceable to Jewel’s conduct, and therefore that has … standing,” Feinerman wrote.
The ruling comes just weeks after the judge similarly blocked Jordan’s shot to end the case quickly through summary judgment, setting the stage for a possible trial between the two iconic Chicago brands, perhaps in December.
Jordan first brought the action shortly after Jewel published an ad in a special commemorative edition of Sports Illustrated magazine, dedicated to honoring Jordan on his induction into the Naismith Basketball Hall of Fame in 2009.
After leading the Chicago Bulls to six NBA championships in the 1990s, Jordan, considered by many to be the greatest basketball player in history, has become an international celebrity. He recently also became a billionaire, whose business empire is built largely upon his likeness and many elements of the image he built through decades of athletic achievements and product endorsements.
At the time of Jordan’s Hall of Fame induction, Jewel was among several local businesses to run ads for free in the special magazine and also sell the edition on news racks in its stores for a time.
The ad included a pair of basketball shoes, similar to those Jordan wore during his years with the Bulls, each bearing the number “23” on the top of the tongue. Jordan wore that number on his jersey for much of his career with the Bulls.
The ad further incorporated Jewel’s logo and its trademarked slogan, “Good things are just around the corner,” in discussing Jordan’s accomplishments.
After Jordan sued Jewel, the grocer argued in federal court its ad was protected as free speech under the First Amendment.
A federal judge initially sided with the supermarket chain, but, on appeal in early 2014, the U.S. Seventh Circuit Court of Appeals overturned that decision, saying Jewel’s speech was commercial in nature, and therefore subject to a different judicial standard.
With that decision in hand, Jordan renewed his claim against Jewel, asking the court to quickly rule in his favor, based on the Illinois Rights to Publicity Act.
In March, however, Feinerman said Jordan’s motion for summary judgment was out of bounds, as it relied on what the judge called a faulty interpretation of the appellate ruling, which he said the appellate judges had explicitly refused to extend to cover Jordan’s state law claims.
Following that ruling, Jewel then asked the judge to dismiss the case, arguing, as it did in defending Jordan’s move for summary judgment, that Jordan lacked standing to bring the action because he had transferred the rights to his identity and likeness to his company, Jump 23, and that company was not a party to the suit.
Jordan, however, said Jump 23 is “merely his loan-out company and he retains ownership of his likeness.” He said no written agreement transferring the rights exists.
Feinerman said, for the purposes of considering Jewel’s motion to dismiss, legal procedures require him to accept as true “Jordan’s version of the facts” related to the purported transfer of his image rights.
Feinerman noted the distinction between Jordan and Jump 23 could prove to be a “possible distraction” at trial. To avoid confusion, he suggested Jordan may wish to add Jump 23 as an official plaintiff on the case, saying “if it were granted, the trial would be made simpler.”
Jordan is represented in the action by the firm of Schiff Hardin LLP, of Chicago.
Jewel is represented by attorneys from the firms of Goldberg Kohn Ltd., and Greensfelder, Hemker & Gale P.C., each of Chicago, and Merchant & Gould P.C., of Minneapolis.