Amazingly, I’m not writing about science, but I’ll do my best to make this post as dry and uninteresting as my science posts.
Anyway, one of the great tactics of guerrilla marketing is to buy keywords of competitors (or, in some cases, people whom you are trying to impress), but a case in Wisconsin may end the tactic. The story is pretty straightforward – in 2009, the personal injury law firm of Cannon & Dunphy S.C. (the Cannon firm) submitted successful bids to search engines Google, Yahoo! and Bing to use “Habush” and “Rottier” as “keywords” that would place the Cannon firm in slot one on the page as a sponsored advertisement. Here’s the rub – “Habush” and “Rottier” are personal injury lawyers RobertHabush and Daniel Rottier, of Habush & Rottier S.C.
In other words, the Cannon firm’s website was the first link to pop up if someone typed in“Habush” or “Rottier” using Google, Yahoo! or Bing. Ha ha ha. Right? I mean, it’s pretty funny that they pulled it off and they certainly wouldn’t be the first group to do it. But, hell hath no fury like a law firm scorned.
Personal injury lawyers Robert Habush and Daniel Rottier, of Habush & Rottier S.C., sayCannon’s internet advertising strategy violates their right to privacy. Now, the Wisconsin Supreme Court may decide the issue. Habush and Rottier filed suit for injunctive relief, arguing such an advertising practice violates their privacy rights under Wis. Stat. section 995.50(2)(b). Under that provision, using some else’s name for advertising purposes without consent can constitute an invasion of privacy.
I’m not an attorney, so I can’t really make any legal assessments regarding the case, but I think there is a big difference between grabbing someone’s name (via keyword) and promoting your own service, versus grabbing someone’s name and making it look like they endorse your product or service. Apparently, I have that generally correct, because the circuit court granted summary judgment to the Cannon firm, ruling that the advertising practice was an invasion of privacy but there was no proof the invasion was “unreasonable.”
So, case closed, right? Not quite and here’s where it might affect our industry. Habush & Rottier files an appeal and the Wisconsin Court of Appeals recently certified the case, Rottier v. Cannon, 2011AP1769 (June 21, 2012), to the Wisconsin Supreme Court. The appeals court asks the supreme court to decide whether the Cannon firm’s advertising practice constitutes an invasion of privacy, whether Habush and Rottier must prove the invasion was unreasonable and, if so, whether the advertising practice is unreasonable. “We conclude that this case is appropriate for certification because the issues presented here are novel and likely to have wide-ranging impact,” the appeals court wrote in its certification. The appeals court notes a lack of Wisconsin precedent on this particular issue: “We do not doubt that, as a general proposition, privacy may be invaded using online information, including by uses that ultimately rely on the complex, proprietary algorithms that produce search results. However, the parties do not call our attention to Wisconsin precedent addressing anything even remotely resembling this factual context,” the appeals court wrote.
According to the certification, the Cannon firm argues that no invasion of privacy occurred because Internet searchers, not the Cannon firm, “used” the plaintiffs’ names in voluntary searches and the sponsored ads did not reference the plaintiffs. “The defendants analogize this to a situation in which a business might buy space on a billboard that is located in close proximity to a billboard bearing a competitor’s add, which would not ordinarily be considered a ‘use’ of the competitor’s name,” the appeals court explained.
Bottom-line (in very, very general terms) – the Wisconsin Supreme Court has been asked to set precedent on this issue. If they rule against Cannon, 0r, technically, even if they don’t, they can set terms of how keywords can be purchased or used. The impact may end up being far-reaching in that it could end guerrilla keyword marketing. Great, like we need one more thing we have to worry about.
Keep an eye on this one.
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