Barrage of Boner Pill Ads Aren’t Fault of Google

     CHICAGO (CN) – Google cannot be sued by a Wisconsin woman whose name returns ads for erectile dysfunction medication, and whose repeated lawsuits over the issue ensure that fate, the 7th Circuit ruled.
     Beverly Stayart, self-described as a respected scholar of genealogy and a “positive and wholesome” leader in the animal rights movement, complains that “a search for ‘bev stayart’ may lead to a search for ‘bev stayart levitra,’ which in turn may lead to websites advertising drugs to treat male erectile dysfunction,” Judge Ann Claire Williams summarized in the 7th Circuit’s Wednesday ruling.
     Based on the results, which Stayart claims are damaging to her otherwise “wholesome” reputation, Stayart filed a federal complaint against Google in April 2010 under Wisconsin’s misappropriation laws.
     Wisconsin law protects residents from misappropriation of their likeness or image for commercial use without their consent. Misappropriation is also part of the state’s common law.
     It is the third such complaints Stayart has filed against Internet search engines based on the results displayed when her name is entered.
     The earlier suits were both filed against Yahoo, one in February 2009 and the other in January 2010, in Milwaukee federal court.
     Because Google earns money by using her name to trigger sponsored links and ads, and never received permission to use her name, Stayart claims the company has violated the statute.
     Stayart “believes that she is the only ‘Bev Stayart’ or ‘Beverly Stayart’ on the Internet, that her name carries significant commercial value, and that it is a competitive keyword phrase for internet search engines,” Williams wrote.
     But U.S. District Judge Lynn Adelman rejected the claims, citing the public interest and incidental use exceptions to misappropriation laws.
     The judge found that Stayart’s earlier suits made the phrase “bev stayart levitra” a matter of public interest.
     Additionally, Adelman concluded, the incidental use exception applies because Google’s use of Stayart’s name did not play a substantial role in its revenue-generating efforts.
     The 7th Circuit affirmed on Wednesday, issuing its opinion over 11 months after oral arguments were heard in the case.
     “In her complaint in the instant case, Stayart alleges that ‘Google’s misappropriation of Bev Stayart’s name and likeness began at least as early as February 1, 2010 …,’ the month after she sued Yahoo! over the same search phrase,” Williams wrote for a three-judge panel. “And all the searches she attaches to her complaint were executed in April 2010.
     “Court documents, including Stayart’s complaint and the district court’s 2011 order dismissing that complaint, are matters of public interest. It follows that if court documents warrant the public interest exception, the search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception.”
     Google’s profit motives for displaying the search results do not undermine reliance on the public interest argument, the appeals court determined.
     Moreover, Stayart’s name was not a significant moneymaker for Google.
     “Nothing in Stayart’s thirty-page complaint – 139 pages with attachments – suggests that the connection between Stayart’s name and Google’s efforts to generate revenues through its use is ‘substantial rather than incidental,'” Williams explained.
     “In fact, Stayart’s complaint and the hundreds of pages of attachments and supplemental documents she has filed suggest that the term ‘levitra’ and not Stayart’s name triggers the erectile dysfunction ads,” she added.
     Stayart filed a fourth suit related to Internet searches of her name in July 2011 in Walworth County Circuit Court. This time, she sued Various Inc. dba AdultFriendFinder, which had been named as a defendant to the 2009 case with Yahoo. The complaint notes that a Wisconsin federal judge dismissed that case but gave her leave to refile in state court.

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