In Habush v. Cannon & Dunphy, S.C. the Wisconsin Court of Appeals ruled that the law firm Cannon & Dunphy did not violate Wis. Stat. § 995.50 (governing invasions of privacy) when it purchased the internet search terms “Habush” and “Rottier”, the names of two well-known competitors. The Court ruled that purchasing a person’s name as an internet search term did not constitute prohibited “use” under § 995.50.
Cannon & Dunphy and Habush Habush & Rottier are competing Wisconsin personal injury law firms. The Court noted that it was undisputed that Robert Habush and Daniel Rottier are both well-known personal injury attorneys whose names have commercial advertising value. Cannon & Dunphy purchased the terms “Habush” and “Rottier” through several internet search engines. Accordingly, when an internet user searches for either of those terms using one of those engines, “advertising” or “sponsored” links to Cannon & Dunphy’s website appear above and/or alongside the “organic” results for “Habush” and “Rottier”.
Habush and Rottier filed suit against Cannon & Dunphy, alleging that Cannon & Dunphy used their names for advertising purposes without their written consent in violation of Wis. Stat. § 995.50(2)(b). The circuit court granted summary judgment in favor of Cannon & Dunphy, ruling that Habush and Rottier had not established that the invasion of their privacy was unreasonable.
The Court of Appeals affirmed on different grounds. Rather than focusing on whether a violation of § 995.50 required proof of an unreasonable invasion of privacy, it ruled that Cannon & Dunphy’s purchase of internet search terms did not constitute “use” under § 995.50. Section 995.50(2)(b) (the operative portion of § 995.50) prohibits the “use, for advertising purposes or for purposes of trade” the name, portrait or picture of any living person without their written consent.
The Court of Appeals concluded that the term “use” in § 995.50(2)(b) was ambiguous. The Court found that “use” under the statute could reasonably mean any kind of use of a name or image if that use took advantage of the commercial value of a person’s identify; however, “use” could also reasonably mean only use that was visible to the public, meaning that the used name or image was found in or on the defendant’s product, advertisement, etc.
The Court of Appeals ruled that the more reasonable interpretation of the word “use” in § 995.50 does not include purchasing someone’s name as a search term, although it called the issue “a close one”. Key to the Court’s ruling was the concept of “proximity advertising”. Proximity advertising is the practice of locating an advertisement or a business near an established competitor to take advantage of the flow of potential customers or clients to the established competitor (for example, locating a car dealership across the street from an existing car dealership or placing a yellow pages ad in proximity to a competitor’s phone listing). Proximity advertising undeniably takes advantage of an established competitor’s name and its ability to draw potential customers, but is undisputedly a proper practice that would not violate § 995.50.
The Court failed to see a meaningful distinction between Cannon & Dunphy locating a branch office next to an established Habush Habush & Rottier office to take advantage of the flow of people seeking out Habush Habush & Rottier (again, a proper practice that would not violate § 995.50) and Cannon & Dunphy’s purchase of the search terms “Habush” and “Rottier” to take advantage of the flow of people who may seek out Habush Habush & Rottier on the internet. Thus, it does not constitute prohibited “use” under § 995.50 and does not violate the statute. Important to the Court’s ruling was the fact that Cannon & Dunphy’s use of Habush’s and Rottier’s names was “invisible”, meaning that the names Habush and/or Rottier did not physically appear on any of Cannon & Dunphy’s advertising — links to Cannon & Dunphy’s website simply appear along with the results when the search terms “Habush” or “Rottier” are entered. Like proximity advertising, Cannon & Dunphy’s search term purchase takes advantage of the name of an established business but does not visibly “use” a competitor’s name in the same way as putting the name or image in an advertisement or on a product. However, the Court of Appeals did limit its holding to internet search terms and results at issue in this case; the Court declined to adopt a bright line rule exempting all “non-visible” advertising from coverage under the statute because there may be variations on non-visible use of a name that the Court thought it could not anticipate.