Nov 192009
 November 19, 2009  Court, Featured News, Online

Dinesh Ramde of Associated Press reports on a lawsuit in Wisconsin that makes an intriguing legal argument.

The law firm of Habush, Habush, & Rottier is suing rival law firm Cannon & Dunphy for buying the words “Habush” and “Rottier” from Google for keywords. Habush argues that by purchasing the keywords, a sponsored link for Cannon & Dunphy was showing up above their own listing when anyone used Google to search for “Habush Rottier.”

Unlike other lawsuits that Ramde describes that allege trademark infringement, however, this lawsuit is based on a privacy claim. Ramde writes:

Habush based its lawsuit on a Wisconsin right-to-privacy statute that prohibits the use of any living person’s name for advertising purposes without the person’s consent.

The statute defines three types of “invasion of privacy,” the second of which says:

The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian. [Section 995.50]

Ryan Calo, a fellow at the Center for Internet and Society at Stanford Law School and oft-time contributor to this site, told the AP that

the statute seemingly was meant to protect people from having their names and images misused to suggest they endorse or represent something. That’s not the case here, he said.

Ryan’s a lot more knowledgeable about the law than I am, but I am wondering how the courts will apply the “for purposes of trade.” If someone uses your name not to trade under your name but to still boost their trade, is that an invasion of privacy under the Wisconsin statute? According to Calo,

“Although (Cannon’s) conduct may run afoul of the literal words of the statute, I don’t think the conduct at issue goes to the core of this particular aspect of privacy,” he said.

You can read more of Ramde’s report in the Chicago Tribune.

Bruce Vielmetti of the Journal Sentinel provides some additional detail on the lawsuit and indicates that the plaintiffs are seeking an injunction and attorney fees, but no damages. Vielmetti also reports that

Dunphy said that he thought a marketing firm had made arrangements with search engines, and that he never requested Habush and Rottier as keywords to bring up his firm.

Habush and Rottier are represented by Jim Clark of the Foley & Lardner law firm.

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