Law Firm Loses Privacy Suit Over Search Terms

     MADISON, Wisc. (CN) – A personal injury firm that bought Internet search terms for a competitor’s name did not violate that firm’s privacy rights, an appeals court ruled.
     Internet search engines like Google, Yahoo and Bing produce at least three types of search results: organic results, advertising results and sponsored results.
     While organic results list websites based on search engine algorithms, firms can also buy advertising and sponsored results for the use of keyword search terms.
     Search engines display advertising results to the right of the organic search results, and sponsored results generally appear above the organic results, set in background shading with the words “sponsored link” or “ad.”
     Robert Habush and Daniel Rottier, of Habush Habush & Rottier, claimed that the firm Cannon & Dunphy purchased “Habush” and “Rottier” as sponsored search terms.
     Thus whenever an Internet user searched on Google, Yahoo and Bing for those names, they saw advertisements for Cannon & Dunphy. Habush had claimed that the purchase violated a Wisconsin privacy law, 995.50(2)(b), barring advertisers from using “the name, portrait or picture of any living person” without consent.
     After a Milwaukee County judge granted Cannon & Dunphy summary judgment, the Court of Appeals’ first district affirmed Thursday, finding that the Wisconsin privacy law was not intended to cover such use of keywords.
     “Locating an advertisement or business near an established competitor to take advantage of the flow of potential customers or clients to the established business is not a practice the legislature intended to prohibit,” the 18-page decision states. “Furthermore, we fail to discern a meaningful distinction between competitors simply selecting locations in proximity to each other and using a third party to obtain the same result.”
     Cannon’s interpretation of the statute was more reasonable, the three-judge panel found.
     “Although the question is a close one, we think the strategy used by Cannon & Dunphy here is akin to locating a new Cannon & Dunphy branch office next to an established Habush Habush & Rottier office when the readily apparent purpose … is to take advantage of the flow of people seeking out Habush Habush & Rottier because of the value associated with the names Habush and Rottier,” Judge Paul Lundsten wrote for the panel.
     Cannon & Dunphy cannot, however, exempt all non-visible use from coverage under the statute,” the court added.
     “There may be variations on non-visible use of a name that we are not able to anticipate,” Lundsten wrote. “Accordingly, our holding is limited to the Internet keyword search term and results mechanism before us.”
     Habush and Rottier argued that the court “should analogize the case … to trademark law cases,” but the court decided that Habush and Rottier’s attempt to tie the federal trademark case law to the meaning of the Wisconsin privacy statute at issue was “insufficiently developed.”
     It also declined to rely on precedent from an Israeli court involving a medical company that bid on a doctor’s name as a keyword search term.
     Habush reportedly plans to seek review from the Wisconsin Supreme Court.
     Milwaukee lawyer J. Ric Gass, who represented Cannon & Dunphy, said in a statement that the decision “effectively brings attorney advertising into the modern era.”

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