Michael Jordan Has Standing to Keep Pressing Persona Rights Claim Against Jewel

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By Anandashankar Mazumdar

June 8 — Michael Jordan has standing to continue pursuing his persona rights claims against a Chicago-based grocery chain, the U.S. District Court for the Northern District of Illinois ruled June 5.

The court did recommend, however, that to avoid having the standing issue come up again at trial, that Jordan join as a plaintiff Jump 23 Inc., the company that administers his intellectual property rights.

The proceeding arose from a special commemorative issue of Sports Illustrated, published to commemoration Michael Jordan's induction into the Naismith Memorial Basketball Hall of Fame, which included paid “tributes” from commercial entities.

One of the pages was submitted by Jewel Food Stores Inc. of Itasca, Ill., which featured a pair of basketball shoes on a hardwood floor with Jordan's uniform number (23) and a congratulatory message that included Jewel's logo and slogan.

Jordan sued Jewel, alleging, among other things, violations of the federal Lanham Trademark Act of 1946 and the Illinois Right of Publicity Act.

In 2012, the court ruled that Jewel's tribute was not commercial speech and could not form the basis of a right of publicity claim.

The U.S. Court of Appeals for the Seventh Circuit reversed the district court's ruling in 2014, determining that the tribute was indeed a “form of image advertising aimed at promoting” the supermarket's brand and constituted commercial speech.

More recently, the district court denied a summary judgment motion by Jordan on the right of publicity claim as well as a parallel motion by Jewel.

The instant ruling was termed a “sequel” to this denial of summary judgment and addressed Jewel's argument in opposition to Jordan's motion for summary judgment that Jordan did not have standing to bring a claim.

For the purposes of summary judgment, the court said, Jordan did not have to prove whatever injury he was claiming, but merely state a plausible claim that the type of injury targeted by the statute was suffered.

As to Jump 23, there is an open question of whether, as Jordan claims, “Jump 23 is merely his loan-out company and that he retains ownership of his likeness.”

The court said that joinder would avoid a “possible distraction,” such that “the trial would be made simpler, which may counsel in favor of Jordan's at least giving it a try.”

The court's opinion was issued by Judge Gary S. Feinerman.

Michael Jordan was represented by Schiff Hardin LLP, Chicago. Jewel was represented by Merchant & Gould P.C., Minneapolis.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bna.com

To contact the editor responsible for this story: Tony Dutra in Washington at adutra@bna.com

Text is available at: http://www.bloomberglaw.com/public/document/Jordan_v_Jewel_Food_Stores_Inc_No_10_C_340_2015_BL_177855_ND_Ill_