Is the use of a competitor’s name in keyword advertising a violation of his or her right of publicity? This issue was recently addressed by a Wisconsin appellate court in Habush v. Cannon, 2013 WL 627251 (Wisc. App. Ct. Feb. 21, 2013). The case arose after one personal injury law firm, a defendant in the case, purchased names of a competing law firm’s partners as advertising keywords on several search engines. In purchasing the advertising keywords, the defendant firm was able to assure that people searching on those search engines for the plaintiffs’ names would be shown sponsored links identifying the defendant’s website. In granting the defendant’s motion for summary judgment, the Court found that this usage is distinguishable from putting a competitor’s name or image in an advertisement or on a product. Accordingly, the Court held that the defendants’ use of the keywords did not constitute the kind of “use” prohibited by Wisconsin’s right of publicity statute. The Court classified this use of the plaintiffs’ names as a “non-visible” use because consumers could not actually see the plaintiffs’ names in the defendant’s ads, but declined to extend its holding to all “non-visible” uses and instead restricted itself to Internet keyword search terms specifically. In its analysis, the Court analogized the circumstances to the placement of billboards near a competitor’s store because such a strategy does take advantage of the plaintiffs’ names and reputation but does not violate the Wisconsin right of publicity statute.
By Glen Westerback and Adam Nelson