Wisconsin Appeals Court Allows Lawyers to Use Competitors’ Names as a “Keyword Search” in Internet Advertising

MILWAUKEE--(BUSINESS WIRE)--In a national case of first impression, the Wisconsin Court of Appeals has affirmed a trial court decision that lawyers’ use of a competitor’s name as a search term in sponsored link advertising does not violate Wisconsin’s right of privacy statute. The Court affirmed a summary judgment dismissal of the complaint, brought by Robert Habush and Daniel Rottier against the Cannon & Dunphy law firm and its principals, William Cannon and Patrick Dunphy. Cannon & Dunphy is represented by J. Ric Gass of the Gass Weber Mullins law firm in Milwaukee.

The plaintiff and defendant law firms in this case are the two largest personal injury firms in Wisconsin.

While the trial court decision was principally based on a lack of showing that the use of a last name as a search term was not an “unreasonable” one as required by the privacy statute, the Court of Appeals decision tackled head-on whether bidding on a last name for a search term was even a “use” of another’s name.

The court held that this was not the kind of “use” anticipated by the statute and was more akin to proximity advertising; locating a business near another similar business to secure visibility to potential purchasers of products or services. The court wrote that a proximity strategy “undeniably takes advantage of the name of the established business and its ability to draw potential customers, but the strategy does not ‘use’ the name of the business in the same way as putting the name or image of the business in an advertisement or on a product.” The appeals court concluded that it is not a violation of state privacy law to bid on a competitor’s name as a keyword search term.

Commented Mr. Gass, “We applaud the court’s decision, which effectively brings attorney advertising into the modern era. The decision is 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.”

With its decision based on the threshold issue of the definition of “use,” which had been argued by Gass below, the court did not reach several other complex issues in the case, including: the First Amendment right to free speech; judicial regulation of advertising in the practice of law; application of the shareholder standing rule; or the application of the “unclean hands” doctrine, since the Habush Rottier firm had engaged in similar advertising triggered by internet searches on competing lawyer names.

Attorney Gass has tried more than 300 cases to verdict and is a founding member of Gass Weber Mullins, just named one of the top 10 boutique law firms in the country by The National Law Journal. The firm includes former in-house corporate counsel as well as members who are highly regarded former trial judges. The firm handles a broad range of civil litigation including commercial disputes, product liability, catastrophic injuries, bad faith, construction lawsuits, food safety and life, health and disability litigation, as well as appellate work. For more information: www.gasswebermullins.com.

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Here is a link to the decision of the Wisconsin Court of Appeals:
http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=93174