Attorney Nicholas Linz
March 14, 2013
Lawsuit

Two Wisconsin law firms engaged in an extended litigation debate over online advertising keywords may set the precedent for future disputes over the state’s publicity and privacy rights in advertising.

Use Of Competitor’s Name Does Not Violate Privacy Or Publicity Right

On February 21, 2013, a Wisconsin Court of Appeals ruled that buying search engine ads generated by a business competitor’s name does not violate their privacy or publicity rights.

This Wisconsin keyword advertising lawsuit involves two competing personal injury law firms. It began in 2009, when Cannon & Dunphy placed keyword triggered advertisements on the words “Habush” and “Rottier,” the names of two partners at Habush Habush & Rottier.

By bidding on these keywords, Cannon & Dunphy’s advertisement would show up under the “Sponsored Links,” section for Google or Yahoo! search engine whenever users searched for the competing firm.

Habush and Rottier sued under Wisconsin’s privacy law, citing Wisconsin Statute § 995.50, which entitles anyone “whose privacy is unreasonably invaded,” to seek compensatory damages and attorney fees.

Section 995.50(2) states that this invasion of privacy can include, “the use, for advertising purposes . . .  of the name . . . of any living person, without having first obtained the written consent of the person . . .”

Appeal Court Sides With Cannon & Dunphy

According to the Court of Appeals Decision, the “use,” of the names by Cannon & Dunphy is of a non-visible nature, and not found in or on the defendant’s product or advertisement. It it is also, “merely a mechanism by which Cannon & Dunphy places its advertising near a link to information about Habush Habush & Rottier.”

The court concluded that buying ads on a competitor’s keywords does not differ than physical proximity advertising and likened the use of keyword association to:

  1. A Car Dealership that locates Across the Street from an Established Car Dealership
  2. A  Business that Places Advertising Billboards next to a Competitor’s Existing Billboards
  3. A Lawyer Placing a Yellow Pages Ad in Proximity to the Phone Listing of Competing Lawyers

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Court Looks at Search Engine Results Like They Do at Physical Real Estate

In a way, the circuit court compares search engine results to physical real estate, concluding that, because a Wisconsin law firm can legally open an office next door to a competitor, bidding on a competitor’s keywords to gain web proximity should also be allowed.

Some reactions from the legal blogging community label the decision as a victory for small firm advertising, while others compare the practice to identity theft, calling the strategy “shady.”

An appeal to the Wisconsin Supreme Court is likely inevitable, and that ruling will not only significantly impact online advertising strategies within the state, but may also serve as a precedent for similar litigation actions throughout the country.

If you feel your business or personal name or image has been used in advertising without your consent, or if you are seeking a personal injury attorney, our skilled Wisconsin lawyers can help.