Adword name use was not an unreasonable invasion of privacy, US court rules

The court said that a personal injury law firm was within its competitive rights to attract business away from its competitor by using that competitor's name to trigger ads for it in search engines. The company's actions did not confuse internet users into thinking that the people they had searched for endorsed their firm, the judge said.

William Cannon and Patrick Dunphy placed ads for their Cannon & Dunphy firm that appeared when users searched for rival firm Habush Habush & Rottier, run by Robert Habush and Daniel Rottier.

The ads appeared on search engines run by Google, Yahoo! and Microsoft in 2009.

Habush and Rottier argued that the use of their firm's name by Cannon & Dunphy violated a Wisconsin state law on personal publicity rights.

Wisconsin laws on personal publicity rights say that using a living person's name for advertising or trade purposes is not permitted without first gaining that person's consent, the ruling said. Anyone whose privacy is unreasonably invaded is entitled to "equitable relief to prevent and restrain such invasion", the ruling said.

Habush and Rottier did not prove Cannon & Dunphy's use of their names was unreasonable, the judge ruled.

"[Habush and Rottier] have established that [Cannon & Dunphy] used their names without consent for purposes of advertising and trade," the judge said in his ruling (27-page / 508KB PDF).

"However, they cannot establish that such use was done unreasonably. There are no genuine issues of material fact for determination at a trial. Because only one of the two essential elements of [Habush and Rottiers'] claim is provable, [Cannon & Dunphy] are entitled to summary judgment in their favour," the judge said.

Habush and Rottier had argued that the court should award them an injunction banning Cannon & Dunphy from using their names to link to its website.

Cannon & Dunphy's actions in using the names were not unreasonable as it was within Cannon & Dunphy's rights to try and attract business away from a competitor, the judge ruled.

"Consumers seeking the services may find it easier, and be more likely to, search for the name of a recognised law firm than to key-in 'personal injury lawyers Milwaukee', the judge said.

"[Cannon & Dunphy] are correct that this tends to put businesses in the relative positions on the internet that they were once in when clients used telephone directories," the judge said.

"[Cannon & Dunphy] could write to the TV stations that carry ads for Habush Habush & Rottier. They could ask to purchase ad-time within 20 minutes of every add run by the Habush firm," the judge said.

"If [Cannon & Dunphy] did this, they would be using the name of [Habush Habush & Rottier] for purposes of advertising without [their] consent. But such use is consistent with the principles of energetic business competition in our state and is not unreasonable," the judge ruled.

Habush and Rottier used their names to endorse their law firm giving the search engine results a secondary meaning, the judge said. This dual meaning reduced the unreasonableness of the names' use as advertising tools, the judge said.

Internet users that clicked on links to the Cannon & Dunphy website after searching for Habush or Rottier would notice their mistake with little, if any, confusion, and no perception is given to users that Habush and Rottier endorse Cannon & Dunphy's business, the judge said.

On balance Cannon & Dunphy's use of Habush and Rottiers' names were not unreasonable, the judge said.
"The term 'unreasonable' means irrational, lacking a rational basis, not guided by reason, or capricious," the judge said.

"Under the circumstances of this case, [neither Habush nor Rottier can] establish [that their] name was unreasonably used by the competitor," the judge said.

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