Beverly Stayart is a woman from Elkhorn, Wisconsin, who “claims that she is widely known on the internet as a respected scholar of genealogy and a “positive and wholesome” leader in the animal rights movement.” She also asserts “that her name carries significant commercial value, and that it is a competitive keyword phrase for internet search engines.” Unfortunately, when you search for “Bev Stayart” online, you may get directed to “websites advertising drugs to treat male erectile dysfunction.” This, she argued, harmed the aforementioned commercial value in her name, and so she sued Google. (She had previous, unsuccessfully, gone after Yahoo). Last week, the Seventh Circuit affirmed the lower court’s decision to dismiss the case.
Stayart’s complaint had alleged that Google had violated state law designed to protect her right of privacy, as well as asserting a common-law misappropriation claim. More precisely, she alleged
that various features of Google’s search engine [Google Suggest, AdWords and Sponsored Links, and Related Searches] violate her right of publicity by using her name to trigger sponsored links, ads, and related searches to medications, including Levitra, Cialis, and Viagra, all of which are trademarks of nationally advertised oral treatments for male erectile dysfunction.
Looking at another recent Seventh Circuit case, Bogie v. Rosenberg, the court observed that while the statutes outlawing misappropriation are all well and good, there are exceptions in place, such as in cases of public interest, or when the use is incidental. In the instant case, Stayart lost out on both counts.
The search term “bev stayart levitra” is a matter of public interest primarily because Stayart has made it one—and, given the current lawsuit, ensures that it remains so…
Court documents, including Stayart’s complaint and the district court’s 2011 order dismissing that complaint, are matters of public interest… It follows that if court documents warrant the public interest exception, the search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception.
As for the incidental use exception:
Nothing in Stayart’s thirty-page complaint—139 pages with attachments—suggests that the connection between Stayart’s name and Google’s efforts to generate revenues through its use is “substantial rather than incidental.” … In fact, Stayart’s complaint and the hundreds of pages of attachments and supplemental documents she has filed suggest that the term “levitra” and not Stayart’s name triggers the erectile dysfunction ads. But even if Google’s use of her name were substantial, it would still be entitled to the public interest exception.
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