Wisconsin Lawyers Duke It Out Over Awords

Some Wisconsinpersonal injury lawyers are seeing each other in court these days, but not on behalf of clients. Two members of the Habush & Rottier law firm recently brought a “right of publicity” suit against the Cannon & Dunphy firm based on the latter firm’s aggressive use of the Google AdWords product. AdWords triggers “sponsored links” to appear on the search results screen when someone searches for the purchased words. Here, the defendants “purchased” the names of Robert L. Habush and Daniel A. Rottier. Habush and Rottier are two very high profile personal injury lawyers. So when a Wisconsin accident victim searches for either Habush or Rottier, sponsored links for the Cannon & Dunphy will automatically appear on the results page. Wisconsin’s right of publicity statute is pretty straightforward. It prohibits the “use, for advertising purposes or for the purpose of trade, … the name … of any living person without having first obtained the written consent of the person … .” And that is precisely what was happening in this case. So the Wisconsincourt found that there had been a technical violation. But it went on to ask whether the invasion was “unreasonable.” And that’s where the plaintiffs ran into a snag. According to the court, the AdWords program makes a search engine function like the Yellow Pages. In the old days, a prospective client would go to the Yellow Pages and look up Mr. Habush. And when he found him there, he’d also find the names and contact information (we used to call that a “phone number”) for dozens of other personal injury attorneys. In this court’s mind the AdWords program created the same result. The court also noted that Cannon & Dunphy could contract with a TV station to run its ads immediately following ads for Habush without violating the statute. In effect, triggering its ads to the competitor’s ads. The court saw no distinction between that plan and the AdWords program. It strikes me that the AdWords program is one of those things that seems worse on first blush than it actually is. The Wisconsin court did a good job analogizing it to some examples that are a bit more familiar. The key question should be, not whether the purchased word or name triggered a competitor’s ad, but rather, is the consumer confused in any way by it. If not, it’s probably best to leave well enough alone. And by the way, I just Googled myself and not one sponsored ad came up. What am I, chopped liver???