As with other industries, the law of marketing way also is varied. In the Internet era, many lawyers also closely follow the trend, create many through the network marketing way, for example, USA an inheritance lawyer is a rare keywords through competitive ranking in theGoogleUsers search the key words, search results for the lawyer's personal homepage link -- this keyword is an incurable cancer name, generally for the treatment of this cancer are economically very powerful people, but obviously, money does not mean that can be cured, therefore, these people are faced with a a problem.

Marketing may be in infringement of the border, and therefore may trigger disputes. There is also a lawyer America andGoogle,Yahoo! AndBingThe signing of the contract to the three search engine results in the retrieval of two famous lawyer display the personal home page link first. After the two lawyers to the court, asked to stop infringement. The cause of the Wisconsin circuit court and make summary judgment. The author uses the National Day holiday will be the decision of the translation, to share with colleagues. There is a need to explain, because of the time and space reasons, translation is not the decision involved citations marked and part of the contents of the.

One, the basic facts of the case

RobertL.HabushAndDanielA.RottierAre engaged in personal injury litigation lawyer, also South carolina"HabushHabush&Rottier"Law firms shareholders. This law firm has office in Wisconsin over.WilliamM.CannonAndPatrickO.DunphyAlso in personal injury litigation lawyer, also South carolina"Cannon&Dunphy"Law firms shareholders. This law firm in WisconsinBrookfieldOne office. Four all belong to Wisconsin in business is most prominent, the most successful lawyer. From the2009Year,"Cannon&Dunphy"Law firms andGoogle,Yahoo! AndBingThe signing of the contract, agreement of three users of search engines in the input specific search keywords retrieval results in the firm's Web site links in search results first. In particular, the firm and the three search engine agreed, as long as the user inputHabushOrRottierThe website link, which is displayed in the search results first -- so, may let the common search engine users think in retrievalHabushOrRottierWhen the retrieval results, the most relevant for"Cannon&Dunphy"Law firms. The figure below shows the:

RobertL.HabushAndDanielA.RottierThink carefully maintained their good reputation in their decades engaged in lawyer occupation in Wisconsin, thanks to the exquisite service, extensive and reasonable advertising and spend a lot of time and money for the charity, each get a highly recognized reputation in wisconsin. In Wisconsin, any person on whose name enjoys the property rights. Therefore, they willWilliamM.Cannon,PatrickO.DunphyAs well as"Cannon&Dunphy"To the court law firm, requesting the court in accordance with the laws of Wisconsin three acts of the defendant to stop the injunction, and prohibit the behavior.

The defendants say does not meet the statutory conditions make the ban, and put forward the following active defense:1, protect their behavior under the American First Amendment free speech clause;2Due to the plaintiff, and other search engines also have similar arrangements, they have no right to ask the court to request for injunctive relief.

Since both sides have recognized not in dispute, the court agreed to make summary judgment.

The court thinks, although the plaintiff can determine the defendant was without his consent for advertising and commercial use of the name, but could not confirm that such use is not reasonable, therefore, to2011Years6Month8Japanese ruling dismissed the plaintiff requests to make a motion for summary judgment.

Two, the court's reasoning

(a) positive about the defendant's plea

The defendant argued that, regardless of whether it violated the legitimate rights and interests of the plaintiff, the plaintiff shall not be entitled to request relief: first of all, the defendant to use search engines display link by America First Amendment protection; secondly, the plaintiff has similar behavior, based on the "dirty hands" theory, the plaintiff to the defendant behavior seeking request cannot be relief support.

USA first amendment "Congress shall make any restrictions on free speech laws". The defendant argued that the provisions of the right to buy onHabushOrRottierSearch results for the first. Court held that the use the computer retrieval system does not belong to the speech, so the defendant to the defense was not. The plaintiff is not a defendant to link to content is anything wrong prosecution, defendant website has any objection. Results this case only relates to its hidden behind the how to display. The process and content of free. It is not any information is not what the text, do not belong to commercial or other arguments, so the case no first amendment protection. The defendant's behavior is not speech, the plaintiff's behavior does not infringe or restriction of the freedom of speech. Therefore, the defendant cannot according to the first amendment to seek protection in this case. Therefore, from a legal point of view, the defence is invalid.

The defendant then, in accordance with the "no person shall knowingly participated in the action request issued an injunction against the other party in order to obtain the protection of the law" principle, the plaintiff's claim should not be supported. The defendants say, the plaintiff and the defendant is also engaged in very similar behavior. To support the claim, the plaintiff cited"Www.yellowpages.com","Www.anywho.com"And"411.yellowpages.com"Web site, in these sites, as long as the input of personal injury litigation lawyer any Milwaukee any famous people, the search results will appear"HabushHabush&Rottier"Law firms advertising. (given the court in a screenshot, that if the input name or the name of the three defendants, there appears in both display the results"HabushHabush&Rottier"Law firms advertising. The defendant then pointed out, any person may request the court to prohibit others engaged itself in action. They are based on the "hands are not clean" shall not common law for their own protection request ban in behavior principle. The defendant also refer to multiple case support its claim. Because the part is too longLogic, court temporarily omitted)

(two) the original tell please factor analysis

The court thinks, the Wisconsin Law995.50Zhang Yunxu (any image rightPrivacy) violated the unreasonable acquisition ban for violations to prevent or limit. The plaintiff in order to obtain injunctive relief, to prove two points:1The image right has been infringed;2The infringement, is "not reasonably".

1The image right has been infringed

The Wisconsin Law995.50(2()BParagraph) carries on the definition to the infringement of the right of publicity, includes four elements: (1) without prior written consent (the2) for advertising or trade purposes (3Use.4Any living name).

If these four elements are proved, the defendant constitutes a violation of the plaintiff's right of publicity. If the defendant "unreasonable" made the infringement of image rights act, the plaintiff has the right to get the ban to protect.

(1Use

The defendant claimed they were from three search engine for purchase"Habush"And"Rottier"Two key words do not belong to the use of the name"".

The defendant paid search engine company to ensure the site link in any user input"Habush"Or"Rottier"The results show. They admit that, although they did have the specific words were bidding, but use (Utilization) these words to get search results not to these words ("useUse"), because, for the retrieval, the name is not to see. The first result retrieval result is"Cannon&Dunphy"Law firm links, text links below the name does not contain two. After clicking on the link, the user see is"Cannon&Dunphy"Law firms website -- does not contain any name"Habush"Or"Rottier"People.

Court think, the defendant's argument -- the only defendant or advertisements use the name of the plaintiff will constitute a Tort -- logic is, although one has protected property rights to the name, but only a clear, direct display the name constitutes "use". This argument is untenable, for two reasons: first, the use of ("UseThe word ") simple, surface meaning of course, including the purchase of a name is used to obtain the results from computer retrieval; secondly, or legal requirements directly display the name, search keywords"Habush"Or"Rottier"Obviously close to"Cannon&Dunphy"Law firms link.

Appeal court.AppellateCourts) deep meaning sometimes discover common English vocabulary. But a trial judge (TrialJudges) are often reminded if the surface meaning of the lexical meaning law or contract clearly don't go beyond the words. Use for any purpose use, employ, application or development constitute "". The defendant in the three search specified"Habush"And"Rottier"As the key words, and this designation, is a name of a kind of" use".

The name does not appear in the defendant that the retrieval results with the defendant and the defendant in the text of the link to the website. However, with the"Habush"Or"Rottier"Keyword search user inevitably in the near"Cannon&Dunphy"To see the two plaintiff or the one name search results link in the law firm. Retrieval of the user through the input contains the name search keywords so that the plaintiff's name appears in the search results.

The accused to ensure that their firm name and website link in the middle of the name:"Cannon&Dunphy"Above the law firm links is search, search keywords in the;"Cannon&Dunphy"Below the law firm link is normal search results, including"HabushHabush&Rottier"Linked sites law firm -- including the name. If "use" for direct display, because the website link as the retrieval result, the name "display" is also a direct place.

The defendant did not link the name is a factor in determining the defendant to use the names are reasonable consideration. However, not enough facts show the defendant to the plaintiff does not constitute the use of name "".

(2For the purpose of trade or advertising)

Results showed that its are in the link text"Cannon&Dunphy"Law firms. Click on the link will log on to"Cannon&Dunphy"Law firms website -- which clearly contains a lot of defendant law firms marketing content. Obviously this link was designed to give"Cannon&Dunphy"Law firms and bring business office website.

The defendant argued that the meaning of legal text is the direct meaning text stenosis. They think, from the freedom of speech, Wisconsin, competition policy and the previous case, its meaning cannot be explained as the direct significance. The defendant that its legal meaning (rather than on the surface meaning) asked if the court finds that the "plaintiff used for advertising or trade name" need to meet two conditions:1The name of the plaintiff, the defendant's advertisement shall be;2The actual advertising must be implied, the defendant to the plaintiff of the product or service agreement or approval.

In this case, the defendant the plaintiff's name can only be used for the purposes of trade. Our laws without any content requirements the name displayed in the advertisement is a necessary condition for infringement. There is no need to construct the plaintiff was authorized as advertising or trade purposes. If the Wisconsin legislative requirements of any of the foregoing points, it will put these requirements specified. The judge did not need to tap it understanding its meaning from the surface to the deep meaning of legislation vocabulary.

The quoted argument (all are search engine developed decades earlier published) are unable to explain to the living name using indirect does not constitute "for advertising or trade purposes". They have a perverse.

There is no denying the fact,"Cannon&Dunphy"Law firms not to link the plaintiff"Cannon&Dunphy"Law firms authorized. However, the fact and the act of the defendant "reasonable", it can't deny has been constituted for the purpose of trade name or use the advertisement.

(3The name)

The approval,"Habush"And"Rottier"On behalf of the livingRobertL.HabushAndDanielA.Rottier. Both parties on whether to use the name of the fact without controversy.

In the past few years, the plaintiff made its name has another meaning. "HabushHabush&Rottier"Is the name of a law firm. Naturally, the two plaintiffs work makes the firm as an entity is different in the image and the public and personal. Although the two sides had been used for the name of the plaintiff without controversy, however, the dual nature of these names will be identified a factor to consider the use of the name is reasonable.

(4Without the written consent of)

The defendant claimed that the plaintiff withGoogle,Yahoo! AndBingThe agreement for the use of its name.

Any plaintiff were not directly written consent"Cannon&Dunphy"Law firms to use either the plaintiff any objective name. The defendant argued that the plaintiff authorized"HabushHabush&Rottier"Law firms to use the name commercial purposes. They then said the firm also formed marketing agreements with three search engines. The defendant that the agreement is actually agree with three other search engine users for advertising or commercial purposes to use the name of the plaintiff.

The defendant failed to provide a legal basis to support its sb for an entity authorized to use the name means that the judge to authorize the use of others. -- both were quoted -- is "restatement of tort law basis only (two)": "the plaintiff may agree to only one person on one occasion for advertising purposes to use the photos. Such authorization can't protect others infringed the plaintiff on other occasions the image right, even if this person in full accordance with authorized the same way."

The contents of this case very little help. Restatement of the facts of the case and tort law are essentially different. The more persuasive argument. The rights protected by the law, without the explicit authorization, third people have no right to use the name. Even if"HabushHabush&Rottier"Law firms have the right to agree with the others to use the name, but theGoogle,Yahoo! The contract can not be authorized.GoogleSome of the contents of the contract, the parties to a contract may contain isolated, agree withGoogleAllow anyone to use it to advertisingGoogleAny content offered. The offer includes personal name. Special low, contract No.17Chapter agreedGoogleService "to rely on advertising revenue and advertising or promotion information. Information retrieval service results, these ads can be stored in the service or other information location." And,17.3Zhang Mingque: "you agreeGoogleCan the advertisement appeared in the retrieval service."

The defendant argued withGoogleThe contract is equal to the plaintiff to the defendant agreed to use the name of this argument is wrong -- even if the plaintiff for the contract to be recognized. Cited content to be combined with other provisions to protect the rights of explanation.11.1Zhang ShouquanGoogleHave the right to copy, display, publication and diffusion upload information. However, this chapter also allows andGoogleContract parties enjoy to enjoy upload information in copyright and other rights. Not only that,20.6Zhang MingqueGoogleAnd have effective but clearly agreed "to any other person or company may not benefit."

Authorized to use the name is not accidental, the need for clear. In this case, the plaintiff did not explicitly authorized any. From a legal perspective, the plaintiff did not agree with the use of the name.

2, unreasonable

First has been clear, the defendant without the plaintiff's written consent form for advertising or commercial purposes the name. Therefore, the plaintiff has identified the defendant violated the right of publicity. However, in order to obtain relief, the plaintiff also need to determine this violation is "unreasonable". The remaining question is to determine the defendant's behavior is not rational.

The plaintiff. The law does not define "unreasonable". "Rational" and "irrational" can be seen everywhere in the law. "Black Law Dictionary" (2009Year Ninth Edition) will be "unreasonable" is defined as "non rational and make; impulsively or without consideration". The court of appeal will have "unreasonable" and "without thinking" or "no rational basis" equal. Finally, to determine whether reasonable to be specific for each specific case investigation, consideration of the related factors.

(1Competition standards and traditional method)

"Anti Unfair Competition Law" Restatement (three) pointed out: "freedom in commercial competition and strive for the potential customers and competition is the fundamental premise for the free market economic system." In Wisconsin, "the most fundamental economic policy is" competition "". "Anti Unfair Competition Law" Restatement (three) pointed out: "free competition meant that someone has the power to attract potential customers and rather than its competitors to trade. The seller can not only from the general competitors competitive business opportunities, but also for business opportunities from specific competitors."

Analysis of rationality of the economic policy should be taken into account. Therefore, review the traditional means of competition and on the basis of the network era of competition, more appropriate.

In American business development process, the most commonly used means of competition is to imitate competitors. This is common sense: Chevrolet in the post World War II opened a large store sales throughout the suburb, after one or two years, Ford began operating in its opposite; McDonald's may be in a business district "exclusive" for a period of time, but not for long,Wendy`sOr"BurgerKing"Will appear in the vicinity. "Cannon&Dunphy"Law firms are fully entitled to in"HabushHabush&Rottier"The law firm to open your own office. At this point, there is no dispute.

The parties in this case both sides admit that one party to the billboard located in another side of the billboard next is completely no ground for blame. In fact, if the defendant to the plaintiff's billboards in the next office or opposite placement, the plaintiff has no basis in law, to request relief.

The defendant argued, they put the name as a keyword to use, is the modern version of the application of regional competition: Although the defendant did not close in the place of business in the entity, but customers looking for the plaintiff, the defendant's name or the name, will appear.

In the past, people use paper phone book. The user can in the telephone book arranged according to alphabetical order from name to find specific lawyers good lawyers, at the same time carefully filtering which or in the page sidebar ads. The plaintiff had in the last page of the telephone directory, a full page advertisement to attract to get information from the phone book people's attention. Lawyers in the phone book, who is out of high cost can the double page advertising means in the first row. It could be argued that a natural, neutral business contactThe index ranking should be arranged in alphabetical order. On the contrary, has always been the competition always allow lawyers through pay for ranking.

Television and radio advertising is an effective way to inform the public of a service. However, more directly targeted way is to seek service in place, customers for marketing to potential customers. The past is the telephone book. Now it is the internet.

The defendant argued that their approach makes legal service consumers to compare different lawyer qualification and services. Consumers will find that -- and it is likely to do so -- direct retrieval of specific well-known law firm than the input"MilwaukeePersonal injury attorney "more convenient. The defendant that the phone book rankings as well as ever in the corresponding position of Internet bring business opportunities is correct.

The defendant may to"HabushHabush&Rottier"Television advertising firm.They can put forward"HabushHabush&Rottier"Law firms advertising broadcast time to buy. Such asThis, the defendant without the plaintiff agreed to use the plaintiff advertising name. But this kind of use and the state actively competition principle has been and is not unreasonable.

(2Individual)/The combined firm

Pointed out that the defendant"Habush"And"Rottier"Not only refers to the two people, there are other significance. The defendant has the right to get a in this situation how to influence the behavior of the rationality of objective analysis.

When a person type"Habush"Or"Rottier"When, he exactly is what you want? Personal information relevant to the plaintiff, or"HabushHabush&Rottier"Information law firm?

Through their efforts and ability,HabushMr. to build its reputation as the outstanding litigation lawyer,RottierAnd so. But any of them per capita cannot handle the firms have all customer. So they decided to make the law in two of them the reputation and above have their own reputation and personality. They decided to name their names into the firm they had a stake. Law firms to spend a lot of money to build its free reputation.

Through advertising and promotion, the plaintiff actually let the world know their firms are even better than their own. They use their good reputation and name authorized a particular firm. They allow"HabushHabush&Rottier"Law firms use the person's name and image. Of course, the two plaintiffs also benefit from its authorization, can at least benefit based on the identity of the shareholders.

This pattern is not"HabushHabush&Rottier"The unique law firm. Authorized personal name company name is embedded in the shareholder and the company a win-win behavior. At the same time, this will reduce the control of their use of the name, because they not only on behalf of the company, also on behalf of the individual. This effect is a factor to consider the behavior is not reasonable.

The plaintiff made their name difficult to separate with their firm name. But the firm is not subject to995.50Protective provisions. Also do not have the relevant legislative precedent. Before the confirmation, the defendant does use the name, but the name, use their irrationality not because the double meaning of these names and cut.

(3User confusion)

May cause confusion to the user is considered using the plaintiff accused name is another factor to consider unreasonable needs. Search engine users know their search results will have certain relevance and their retrieval words. The user the most hope is the retrieval results are all related.GoogleDoes not guarantee the row in front of the accurate search users to get. The value and effect of Internet search is to give users different link opportunities. Sometimes, the result is the best, sometimes users need to browse a lot of Webpage can find what they need.

Internet users have learned to they may obtained from Webpage or the information in the ads critical attitude. The retrieval result is linked together from various sources. Other conditions as in life, people have the ability to identify, compare. To look interested them, they will directly login link to the website.

The plaintiff submitted evidence to prove that a particular person is accused of links with. If the user is looking for one of the plaintiffs and defendants to click login website, he will be aware of the abnormal return to find the information in the search results. If there is not worth mentioning, confused.

Not only such, search results contain the links and the website does not contain any name of the plaintiff. As mentioned before, the retrieval results, two the plaintiff name really close links with the defendant but, link without any content that the plaintiff to the defendant has authorized in any form.

(4The development of Internet advertising)

The Internet vary from minute to minute. Search engine is also in progress as the technology changing rules and the algorithm of data exchange. The defendant against the motion that:GoogleAt present, to network users in the search result for "Webpage" and "different" and other similar content, list the user wants to retrieve field of competitors. For example, in theGoogleIn search of"Habush", automatic four plaintiff firm competitors would result in the link.

The plaintiff requests the Prohibition Act of the defendant. It seems simple but. However, the Internet and search engine algorithm in evolving. If the advertising box in the search result -- regardless of their position, Is it right? Allowed? IfGoogleIn the automatically generated links to competitors, then whether or not to allow anyone to pay the results first appear?

Changes in the competitive field of positioning strategy is not the court would not deal with reason. However, this is a factor analysis the rationality of the act of the defendant.

(5Commercial practice and law ethics)

The plaintiffs in this case defendant infringed its image right, rather than the trademark infringement or unfair competition. Although the school no matter jurisdiction in violation of "lawyer" case specification, ethical behavior is the analysis of the factors to consider its rationality.

The witness that the scholars on ethical behavior is worth questioning. But they can't find the relevant law enforcement or judicial precedent. And the defendant can find expert witnesses his pointed out that the defendant did not violate any ethical or regulation.

Maybe some day in the future legislative, regulatory agencies or the Supreme Court will determine this case involved the behavior is doubtful, misleading so wrong. However, at present there is no mechanism to make such a conclusion. All the above analysis based on, should tend to free competition and relaxing the control.

Since there is no clear precedent was determined with ethical behavior, the plaintiff argues that the act of the defendant is not reasonable claim could not be supported.

(6The rationality of the balance)

And whether the plaintiff prove the defendant "unreasonable" to use their names to the relevant facts including:AThe plaintiff is has a number of lawyers, the responsible person of the law firm, the firm is also involved in advertising, public relations activities for marketing. Each of the plaintiff's name is also included in the name of the Institute;BCompetitors pay, makes the front display the links at all in search results;CThe retrieval results, and link to other similar;D, the name did not appear in the promotion link, although in the link near;EThe plaintiff, no name and click the link after the Webpage;FThe defendant to pay for, and the release of any content does not imply any authorized or approved the plaintiff to provide service for the defendant.

The above facts should be combined with history, science and technology and cultural factors to be considered, including the importance of competition and a general method, the name and the name of the firm coincidence, Internet vary from minute to minute character and the Internet users search Chile due respect. As previously discussed, "unreasonable" means the unreasonable, lack of rational basis, not according to the rationality, wanton.

In this case, the plaintiff cannot prove that its competitors not reasonable to use its name.

Three, the conclusion

The plaintiff to prove the defendant without their consent for the use of the name of advertising and commercial purposes, but failed to prove that such use is not reasonable. This case does not exist in fact dispute. Because the defendant two infringing conditions can only satisfy a request, the request for the injunction overruled.