Right Of Privacy Challenge To Adwords
The Milwaukee Journal Sentinel reports that Habush, Habush & Rottier — Wisconsin’s largest personal injury law firm — is suing rival law firm Canon & Dunphy based on C&D’s use of Google’s adwords program. Apparently, the C&D law firm bought the term “Habush, Habush & Rottier.” So when a personal injury plaintiff types in Habush, et al. in a Google search, an ad for C&D pops up. A number of courts have looked at this issue in other settings. In almost all instances, the cases allege trademark infringement. But here, the Habush firm (and Robert Habush and Daniel Rottier) filed under Wisconsin’s privacy law, contending that C&D misappropriated their names for commercial use. That’s an interesting tactic. One of the challenges with the trademark claims is convincing courts that the adwords program constitutes a “use in commerce” since the “use” is invisible. In addition, trademark plaintiffs have struggled to establish “confusion,” especially where the pop up ad makes it clear that the services are not being offered by the plaintiff. But a misappropriation claim focuses on the unauthorized use element. It may allow a court to award an injunction even without a showing of specific damages. More to come for sure.