Commentary: Wisconsin appeals decision on Cannon vs. Habush sure to create nationwide stir

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A couple of enterprising Wisconsin lawyers set it up so that a link to their firm’s website would appear whenever a prospective client entered their competitors’ last names in Internet search engines.

Thursday, a state court decided that the clever scheme didn’t violate Wisconsin privacy law.

The decision addressed an epic turf battle between two Milwaukee personal injury firms, Cannon & Dunphy and Habush Habush & Rottier. Led by attorneys Robert Habush and Daniel Rottier, the Habush firm is one of the big dogs in the Wisconsin legal community.

William Cannon and Patrick Dunphy have reason to be proud of their own firm, but back in 2009 they were searching for innovative ways to improve their marketing efforts.

They came up with a doozy of a plan, one that involved taking advantage of the Habush firm’s high profile.

Beginning in 2009, Cannon & Dunphy bid on the keyword search terms “Habush” and “Rottier” through the search engines Google, Yahoo!, and Bing.

By successfully bidding on those terms, Cannon & Dunphy was assured that the link to the firm’s website would appear as a sponsored link, just above the link for Habush’s site, in response to an Internet user’s search of the terms “Habush” or “Rottier.”

Attorneys Habush and Rottier were not exactly thrilled that their names had been effectively pirated as part of a competing firm’s marketing scheme. So the two attorneys and their firm sued Cannon and Dunphy and their firm in Milwaukee County Circuit Court.

The 2009 lawsuit alleged that the Cannon & Dunphy firm violated a Wisconsin privacy statute that prohibits the use of any living person’s name for advertising purposes without the person’s consent.

In 2011, Circuit Judge Charles Kahn Jr. agreed that Cannon & Dunphy had used the names Habush and Rottier for the purposes of advertising or trade by bidding on them as keyword search terms, but concluded that there was no violation of the law because such an invasion of privacy was not unreasonable in the Internet Age.

Thursday, the Wisconsin Court of Appeals essentially reached the same conclusion. In upholding the trial court’s judgment in favor of Cannon & Dunphy, the appeals court concluded that the privacy statute at issue did not prohibit bidding on someone’s name as a keyword search term.

Writing for a unanimous three-judge panel, Judge Paul Lundsten decided that Cannon & Dunphy’s use of the terms “Habush” or “Rottier” fell within the realm of lawful “proximity advertising.” The judge specifically cited the example of a lawyer placing a Yellow Pages ad in proximity to the phone listing of competing lawyers.

“[W]e 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 … 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,” Lundsten wrote. (Habush v. Cannon)

This decision is sure to create a stir nationwide and is a good bet to wind up before the Wisconsin Supreme Court. Stay tuned.