CHICAGO (CN) – Though he rarely dropped the ball on his court, Michael Jordan failed to secure an early judgment against grocery chain Jewel Food Stores for using his image.
The ruling pushes Jordan and Jewel to a trial set for Dec. 8, 2015, on his claims over an advertisement Jewel ran in a 2009 commemorative issue of Sports Illustrated.
Jewel, which says the magazine approached it to run a message congratulating Jordan on his induction into the NBA Hall of Fame for the issue celebrating his career, is meanwhile seeking indemnification from publisher Time Inc.
In the five years since Jordan brought the complaint against Jewel, the operator of 175 Jewel-Osco supermarkets in Chicagoland, only his claim for violation of the Illinois Right of Publicity Act (IRPA) remains.
After the 7th Circuit found last year that Jewel would lose full First Amendment protection if Jordan showed that the advertisement was commercial speech, Jordan asserted that he was entitled to summary judgment.
U.S. District Judge Gary Feinerman shot down Jordan’s request last week, finding that the basketball great threw an air ball.
“Put simply, Jordan argues that because the Seventh Circuit’s opinion said what it said, Jewel’s ad has a ‘commercial purpose’ under the IRPA,” Feinerman wrote. “But that is precisely what the Seventh Circuit twice made clear it was not saying.” (Emphasis in original.)
Noting an “absence of case law addressing whether the term ‘commercial purpose’ in the IRPA encompasses brand advertising … and thus whether and, if so, to what extent the term is coextensive with ‘commercial speech’ under the First Amendment,” Feinerman faulted Jordan for failing in his summary-judgment briefs “to engage with the IRPA’s text in light of Illinois rules of statutory construction.”
“Jordan’s failure to develop an argument on the central and unanswered legal question … or to even acknowledge that the Seventh Circuit left open that question – operates as a forfeiture,” the court concluded.
The 17-page decision includes a picture of Jewel’s ad, which features a pair of sneakers with the number 23 on them.
Since Vertis, the graphic designer behind this ad, has since gone bankrupt, Jewel’s third-party claims against it are stayed.
Time lobbed third-party counterclaims against Jewel for breach of contract.
Jewel’s parent company Supervalu Inc. is also a defendant to Jordan’s action.
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