Aug. 13--In a sensible world, former Chicago Bulls superstar Michael Jordan would have seen the full-page magazine ad in 2009 in which a supermarket chain congratulated him for his induction into basketball's Hall of Fame; thought, "Well, that was nice of them"; and then literally as well as figuratively turned the page.
And if he'd been truly concerned that such a use of his name threatened to confuse the public or erode the value of his endorsement deals, he would have directed his lawyers to send a sternly worded cease-and-desist letter ("While Mr. Jordan appreciates the supportive sentiment, he reminds you that any unauthorized ... and that subsequent ... very truly yours ...").
The National Football League and the International Olympic Committee exhibit this sort of corrective, pre-emptive bluster all the time when merchants casually invoke the Super Bowl or play fast and loose with the word "Olympics." Sure, it gets absurd -- in 2006 the NFL cracked down on the Fall Creek Baptist Church outside of Indianapolis for distributing fliers promoting a big-screen "Super Bowl Bash" for congregants; the U.S. Olympic Committee protested the trademark of The Olympian, a newspaper published since 1889 in Olympia, Wash. -- but such watchdogging is effective.
In the litigious world in which we actually live, of course, Jordan and his lawyers are in federal court this week demanding compensation in the millions from the parent company of the defunct Dominick's supermarket chain.
The company acted like "a thief," one of Jordan's attorneys told jurors, when it took out a one-time ad in a limited-run commemorative issue of Sports Illustrated that said, "Congratulations, Michael Jordan, you are a cut above."
The ad featured Jordan's jersey number, a basketball and a clumsy knockoff rendition of Nike's Air Jordan silhouette logo. At the bottom of the ad was a $2 coupon for steak, a coupon that was redeemed by just two customers, the company said.
There's no question that celebrities must be vigilant about the use of their names and likenesses in commercial contexts, even seemingly benign, laudatory contexts. A one-time tribute could turn into a regular series of congratulatory ads and commercials aimed at linking the celebrity in the public's mind to a particular product or merchant, and before you know it, paid endorsements would dry up.
And, in fact, a judge has already ruled, and lawyers for Dominick's are conceding that the chain committed a foul by not getting Jordan's permission to invoke his name in an advertisement.
What it should have done, in retrospect, was simply to allude to Jordan with a wink, the way tavern owners and appliance retailers allude to the Super Bowl when they link events to "the Big Game."
"Congratulations to our favorite sociopathically competitive local sports hero!"
The question now for jurors is, what kind of foul?
Was it a flagrant foul, akin to those borderline wicked hacks in basketball that result in particularly harsh penalties? Team Jordan argues yes. Jordan's name on a product is worth millions -- $480 million, in the case of his deal with Nike between 2000 and 2012 -- and when you presume to use it, even once, you're as good as all in.
"If you want the Hope Diamond, you have to buy the Hope Diamond. You can't just chop off a little piece of it," argued Jordan's attorney, Fred Sperling.
Or was it a common foul, akin to such hoop transgressions as reaching in or grabbing on defense that result in minor penalties?
Dominick's attorneys made the analogy to $5,000 demands Jordan made of manufacturers of counterfeit clothing.
Me, if I'm the ref, I'm calling: "Play on."
Yes, your opponent bumped you as you were dribbling or wrapped a hand around your back while boxing you out on the boards. It's a foul. He broke the rules. Deal with it. No real harm was done, and if we whistled every ticky-tack violation, the game would be an endless march to the free-throw line. Or, in this case, the courtroom.
Did even one reader see that shoutout and think it implied Jordan endorsed or shopped at Dominick's? Doubtful, especially given that then-rival Jewel-Osco ran a similar ad -- also the subject of litigation -- in the same magazine.
Did genuine sponsors abandon Jordan for this putative evidence of promotional promiscuity? It seems not, given that his lawyers said Jordan just turned down $80 million to endorse a brand of headphones.
Is anything more than a token award necessary to reinforce the principle that Dominick's should have known better than to take out that ad and that no company should ever dare to publicly laud Jordan again without paying him? No.
The Latin legal term that comes to mind is de minimis -- a trifle.
The only damage done to Michael Jordan here is the damage he's inflicting on his own reputation by literally making a federal case out of a misguided huzzah. He's coming off as touchy, narcissistic and greedy, which is likely to reduce the value of his blessings on the businesses willing to pay for them.
In a sensible world, he'd realize that, accept a modest settlement check and immediately donate it all to charity.
In the litigious world in which we actually live, well, stay tuned.
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