Buying Search Engine Placement Triggered by a Competitor’s Name

Habush v. Cannon, 2011 WL 2477236 (June 8), holds that such purchases can’t be enjoined under Wisconsin “right of publicity” law. Plaintiffs, Robert L. Habush and Daniel A. Rottier, are personal injury lawyers and partners in Habush Habush & Rottier. Defendants, William M. Cannon and Patrick O. Dunphy, are plaintiffs’ competitors, and partners in Cannon & Dunphy. “Beginning in 2009, defendant Cannon & Dunphy, S.C. contracted with Google, Yahoo!, and Bing for a sponsored link to their law firm website to appear as the very first result, above organic results, in response to any user’s input of certain search terms. Specifically, it purchased … the right to have the Cannon & Dunphy, S.C. link appear whenever the user would type either the word ‘Habush’ or the word ‘Rottier’ into the search engine.” Plaintiffs sued, asking for an injunction against this behavior, on the theory that it violated the plaintiffs’ “right of publicity” — the right to block (some) uses of plaintiff’s name or likeness for commercial purposes. Wisconsin law allows conduct to be enjoined if it “unreasonably invade[s]” people’s privacy rights, which include the right of publicity.

The trial court held that defendants’ conduct did use plaintiffs’ names for commercial purposes, and that the First Amendment wasn’t applicable. (The Court’s First Amendment argument rested on the view that “the use of a computerized system to sequence search results is not speech,” “commercial or otherwise”; I don’t think that argument works, when plaintiffs’ objection is precisely to the fact that defendants caused Google to communicate certain information to customers.) But the court concluded that the behavior wasn’t “unreasonabl[e],” and was instead permissible competition. This means that, under the Wisconsin statute — though not necessarily under the right of publicity rules of other states — the behavior can’t justify either an injunction or a damages award.

UPDATE: Prof. Eric Goldman has much more on this case.