Feb. 21, 2013 – The Cannon & Dunphy law firm did not violate the privacy rights of Robert Habush and Daniel Rottier, of Habush Habush & Rottier, when it purchased the Internet search terms “Habush” and “Rottier” to divert Internet users to its own website.
That’s what the District I Court of Appeals ruled today in Habush v. Cannon & Dunphy S.C., 2011AP1769 (Feb. 21, 2013), a case the Wisconsin Supreme Court initially refused to hear when the appeals court certified the case for review in June 2012.
“We are obviously disappointed with this decision and expect to request review by the Wisconsin Supreme Court,” Bob Habush and Dan Rottier said in a statement issued through their attorney, James Clark of Foley & Lardner LLP, Milwaukee.
Cannon & Dunphy and Habush & Rottier are competing personal injury firms based in the Milwaukee area. In 2009, Cannon successfully bid on the search terms “Habush” and “Rottier” through Google, Yahoo!, and Bing – powerful Internet search engines.
This marketing strategy meant that if an Internet user searched for “Habush” or “Rottier,” Cannon’s website would appear as a “sponsored” link at the top of the search list – above the Habush firm – a valuable place to be. Habush sued the Cannon firm.
They said the Cannon firm violated Wisconsin’s privacy statute, Wis. Stat. section 995.50(2)(b), when it used their names for advertising purposes.
Under that provision, an “invasion of privacy” occurs if someone uses the name, portrait, or picture of any living person for advertising purposes without obtaining written consent first.
The circuit court ruled that an invasion of privacy occurred but concluded that the invasion was not unreasonable. The statute, section 995.50(1), also states that a party is entitled to relief if the party’s privacy is “unreasonably invaded.”
Thus, the circuit court granted summary judgment to the Cannon firm. The appeals court – after certification was denied – affirmed that judgment today.
“While our analysis differs, we agree with what we understand to be court’s pivotal reasoning – that the use of the names here is different in kind from the type of use the statute is intended to cover,” wrote Judge Paul Lundsten for a three-judge panel.
The appeals court based its decision on interpretation of the term “use” in section 995.50(2)(b) – which prohibits “use” of someone’s name for advertising purposes.
The panel said the term “use” is ambiguous, based on the competing and reasonable interpretations offered by both parties. Habush and Rottier said “use” is any use for commercial purposes. The Cannon firm “used” their names to benefit Cannon & Dunphy, and did so without their consent, they argued.
But the Cannon firm offered a more narrow interpretation of the term “use.” It said a privacy invasion does not occur unless the name or image is “found in or on the defendant’s product or solicitation for services.” That is, the names “Habush” and “Rottier” are not visible within the sponsored links or on the Cannon website.
Joe Forward is the legal writer for the State Bar of Wisconsin. He can be reached by email at jforward@wisbar.org or by phone at (608) 250-6161.
The appeals panel ruled that Cannon’s interpretation was more reasonable.
“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 Lundsten wrote.
However, the panel noted that not all situations involving “non-visible use” are exempt from the reaches of Wisconsin’s privacy statute: “There may be variations on non-visible use of a name that we are not able to anticipate. Accordingly, our holding is limited to the Internet keyword search term and results mechanism before us.”
The panel refused to consider the argument, advanced by Habush and Rottier, that analogous trademark law cases support their reading of the term “use.” It also declined to consider a similar case decided by an Israeli court.
J. Ric Gass of the Gass Weber Mullins law firm in Milwaukee represented Cannon & Dunphy and its principals, William Cannon and Patrick Dunphy. In a statement released today, Gass said:
"We applaud the court's decision, which effectively brings attorney advertising into the modern era. The decision is a win-win-win: a win for our client's ability to effectively compete in an open marketplace; a win for the legal profession in terms of its ability to communicate with prospective clients; and a win for consumers of legal services, who now are better able to make an informed decision about their choice of lawyer."
Habush and Rottier plan to appeal the case to the Wisconsin Supreme Court, which previously denied review on certification from the appeals court.
