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Torts — privacy

By: WISCONSIN LAW JOURNAL STAFF//February 21, 2013//

Torts — privacy

By: WISCONSIN LAW JOURNAL STAFF//February 21, 2013//

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Wisconsin Court of Appeals

Civil

Torts — privacy

A business does not violate sec. 995.50(2)(b) by successfully bidding on a competitor’s name as a keyword in an internet search engine.

“We agree with the circuit court, and with Habush’s and Rottier’s apparent concession, that locating an advertisement or business near an established competitor to take advantage of the flow of potential customers or clients to the established business is not a practice the legislature intended to prohibit by adopting WIS. STAT. § 995.50(2)(b). This 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.”

“Furthermore, we fail to discern a meaningful distinction between competitors simply selecting locations in proximity to each other and using a third party to obtain the same result. As we understand the logic of Habush’s and Rottier’s position, the difference is the involvement of a third party. For example, if Cannon & Dunphy called billboard companies and requested the placement of billboard advertising in proximity to existing billboard advertising using Habush’s and Rottier’s names, Cannon & Dunphy would be ‘using’ those names in violation of the statute. But if an employee of Cannon & Dunphy drove around the state looking for and obtaining the same billboard space, without mentioning the names Habush and Rottier to the billboard companies, there would be no violation. We fail to discern a meaningful distinction between the two situations.”

“Although the question is a close one, we think the strategy used by Cannon & Dunphy here is akin to locating a new Cannon & Dunphy branch office next to an established Habush Habush & Rottier office when the readily apparent purpose—as with the circuit court’s car dealership example—is to take advantage of the flow of people seeking out Habush Habush & Rottier because of the value associated with the names Habush and Rottier.”

Affirmed.

Recommended for publication in the official reports.

2011AP1769 Habush v. Cannon

Dist. I, Milwaukee County, Kahn, J., Lundsten, J.

Attorneys: For Appellant: Clark, James R., Milwaukee; Crawford, Adam E., Milwaukee; For Respondent: Gass, James R., Milwaukee; Hanan, Beth E., Milwaukee

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