Plaintiffs Habush and Rottier were well-known personal-injury lawyers in Wisconsin and defendants Cannon and Dunphy were competitors. Beginning in 2009, defendants purchased “Habush” and “Rottier” as keywords from Google and other search engines. When users searched for either “Habush” or “Rottier,” the search results displayed paid advertisements for Cannon and Dunphy’s law firm as the first sponsored link above the regular search results. The ads did not contain plaintiffs’ names. Habush and Rottier sued defendants for invasion of privacy under Wisconsin’s invasion-of-privacy statute, which provides that it is an invasion of an individual’s privacy to “use, for advertising purposes or for the purpose of trade, . . . the name . . . of any living person without having first obtained the written consent of the person . . . .” The statute also requires that one’s privacy must be “unreasonably invaded.” In an earlier decision, the Milwaukee County Circuit Court granted defendants’ motion for summary judgment and dismissed the case on the ground that the defendants’ use did unreasonably invade the plaintiffs’ privacy.
On appeal, the Wisconsin Court of Appeals affirmed the lower court’s ruling, but on different grounds. Instead of focusing on the “unreasonably invaded” requirement, the appeals court held that defendants’ purchase of Habush’s and Rottier’s names as search-engine keywords was not a “use” under the Wisconsin statute.
The appeals court first interpreted the meaning of the word “use” in the Wisconsin statute. It found that both parties’ interpretations of the “use” requirement were reasonable. Plaintiffs argued that any type of use for commercial purposes was actionable, whereas defendants argued that the statute covered only uses that were “visible” to the public in the defendants’ advertising or products, i.e., it did not cover “invisible” uses such as defendants’ where plaintiffs’ names were not visible in defendants’ ads or on defendants’ website. The appeals court sided with defendants, holding that the statute covered only those uses that were “visible to the public in the sense that the used name or image [was] ‘found in or on the defendant’s product or solicitation for services’.” The court, however, limited its decision to bidding on a person’s name as a keyword search term and did not “exempt all non-visible use from coverage under the statute.” It noted that there may be unanticipated variations on the “non-visible” use of a name that could warrant a different result.
The appeals court’s decision was based in large part on its comparison of keyword advertising to “proximity advertising.” It found that purchasing keywords to trigger ads on the same web page as a link to a competitor’s website was similar to “locating an advertisement or business near an established competitor to take advantage of the flow of potential customers,” such as a billboard or a Yellow Page ad. Habush and Rottier even admitted to the trial court that “locating a new Cannon and Dunphy branch office next to an established Habush and Rottier office” to “take advantage . . . of the value associated with the names Habush and Rottier” would not violate the statute. Just as these types of proximity advertisements did not use the competitors’ names, purchasing keywords to trigger ads did not constitute a use.
The appeals court rejected plaintiffs’ argument that the court should rely on the meaning of “use” in federal trademark-law cases, which consider keyword advertising a “use” under the Lanham Act. But the appeals court “decline[d] to look to trademark law for guidance,” holding that while the trademark-law cases could provide helpful guidance, plaintiffs did not support their assertions with any legal analysis. The court also declined to consider an Israeli court’s decision finding that a company invaded the privacy of a doctor by bidding on his name as a search-engine keyword, commenting that it did not have enough information to know whether the Israeli law and the context of that case were “sufficiently comparable to American jurisprudence and the particular law we must interpret.”
This case is of interest because it appears to be the first appellate-level state court decision addressing keyword advertising as a possible violation of a state right-of-publicity or invasion-of-privacy statute. It is also interesting for the defendants’ reliance, albeit undeveloped, on Lanham Act trademark cases and foreign court decisions to support their “use” argument under state law.