October 2019 – When a law firm wants their Google ad to come up on the top of the search results, they can bid on their competitors name in Google Ads (formerly AdWords). If their bid is successful, then when a potential customer the searches that brand name, the competing attorney’s ad will come up on the top of the search results as an ad.
In the business world, it’s been going on for years, and it’s legal so long as you don’t make the consumer believe that you are them. This is sometimes called “trademark bidding” or “competitive keyword bidding”. In 2000 Google began AdWords which allowed the bidding of any term including competitor’s brand name, brand terms/phrases and any competing terms that will drive consumers to their site.
So is this legal? What about trademark violations? It’s a question which keeps popping up here as we manage several ad campaigns for personal injury attorneys.
At present, there are no laws that directly prohibit brand name keyword purchases for Internet advertising, and there have been no significant civil suits that have been decided on the side of protecting the brand name.
In a case alleging trademark infringement, Rescuecom v. Google Inc, Rescuecom sued Google because Google actively recommended the brand name Rescuecom to competitors in their AdWords program. Rescuecom dropped the suit after a settlement, but in its proceedings, the Second Circuit held that Googles use of the term “Rescuecom” constituted a “use in commerce” under the Lanham Act which prohibits the use of trademarked names.
However, this fell well short of declaring brand name keyword purchasing illegal. Google’s position is that it allows the purchasing of brand names for keyword searches, and won’t restrict the use of brand names purchasing even if a formal complaint is submitted.
Is it Ethical?
So, brand name keyword purchasing is allowed by Google and for now is legal, but is it ethical for attorneys? Before we attempt an answer, we need to know exactly what practice we are talking about.
Competitor Brand Name Bidding
Law Firm X uses a keyword search ad program like Google AdWords that allows them to bid on certain terms, words or phrases in an Internet search engine company’s search-based advertising program. The firm doesn’t now own that name, it’s just that during the time they did pay for, the keyword term they chose will trigger their ad in the browser’s sponsored ad section.
So, if Law Firm X choses Law Firm Y’s brand name, then during the time they have paid for that name, any search (usually within a geographical region) will trigger Law Firm X’s ad. They get charged for every click on their ad that came from the search of Law Firm Y’s brand name.
Non-Brand Name Keyword Searches
Another use of keyword ad purchasing is to use key words that are not directly the brand name of the company. It might be something like Firm Y uses the phrase “No Reward No Fee” a lot in their ad campaign and on their website. Firm X could bid on that phrase or other keywords that are used by Firm Y. The ad results could have those same key word phrased in their ad, or they can just have their ad come up without those key words.
State Bar Rules of Professional Conduct
Each state’s bar has rules of professional conduct that governs areas like advertising and other business practices for attorneys in their state, and most states have very similar rules. Many states use some form of the American Bar Associations Model Rules for their rules of professional conduct.
False Misleading Misrepresentation
Model Rule 7.1: Information About Legal Services
“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
Model Rule 8.4(c): Misconduct
“It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
If the consumer believes that they are actually clicking on the brand name firm and instead gets the website for a different firm, then I think most people would agree that this is false, misleading and a misrepresentation.
Are there any keyword search ads that aren’t false or misleading? To answer this, we need to look at different ways these brand name keyword searches work. There are two primary models of keyword search advertising.
In the first model, the advertising firm (Firm X) would bid on a brand name (Firm Y), and when a consumer searched the name, an ad pops up without the brand name or branded terms and phrases. It would be in the sponsored ad portion of the results page.
The second—and seemingly more offensive—method is for Firm X to use Firm Y’s brand name in their ad. In this way, the user clicks on the name they were searching for only to get Firm X’s website.
State Bar Opinions
In North Carolina, in a 2010 formal ethic opinion on the ethics of key word brand name advertising.
“The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.”
North Carolina feels that competitor brand name search ads are unethical. However, which method? It seems clear that when the brand name is used on the ad, this causes the user to be directly mislead by clicking on one name and getting another. So, what about purchasing the brand name keyword but not put the brand name in the ad that comes up?
At this point, it’s not clear if the opinion makes that distinction. If the user’s search of a brand name resulted in the typical organic results that took users to the intended website, is it a violation of NC’s opinion if the search triggered an ad that showed up in the sponsors section of the results page?
It sounds like splitting hairs, but the difference is that the user would have to purposefully choose to move away from the organic result and click on the ad instead. Is this misleading, false or a misrepresentation?
In Florida, proposed advisory opinion A-12-1 would have banned key word brand names and phrases of a competitor regardless of whether the resultant ad used the brand name or not. In either way, purchasing branding names or phrases would have been prohibited.
However, after some pushback by attorneys and business groups, the opinion went down to defeat 18-23 in the Florida Bar’s Ethical Council vote. The bar released a statement regarding the decision:
“It is of the opinion that the purchase of ad words is permissible as long as the resulting sponsored links clearly are advertising, and because meta tags and hidden text are outdated forms of web optimization that can be dealt with via existing rules prohibiting misleading forms of advertising.”
The meta-tags portion of the opinion is obsolete now, but it’s clear that Florida believes that if an ad is clearly marked as an ad, then it’s permissible. This seems to endorse all key word purchasing including brand names, but only when the resulting results are clearly advertising. The problem is, the opinion doesn’t clarify what an ad is.
If Firm X’s ad has Firm Y’s name in their advertisement that is clearly marked as an ad, is this acceptable? It seems like it wouldn’t be, and if it would, then maybe it shouldn’t be. Any attorney practicing in Florida that plans on putting another firm’s brand name in their ad when using keyword search advertising should ask the bar before to avoid an ethics violation.
What About Getting Sued?
If Google allows it, the state bar allows it, and it’s legal, is there any recourse for the offended brand name holder? What about a lawsuit?
In one such suit, Helmer, Conley & Kasselman v. Hark & Hark, Helmer et al accused Hark & Hark of a trademark violation because their name “Helmer, Conley & Kasselman” appeared in the triggered ad and directed clients to Hark & Hark.
A New Jersey judge issued an injunction against Hark & Hark prohibiting them from using the name of Helmer, Conley & Kasselman in their advertising. Helmer et al dropped their suit and agreed to leave the court’s injunction in place.
This hasn’t exactly paved the way for other lawsuits, but having the injunction kept in place seems to be a bellwether of where the ethical lines might be drawn.
Trends
It’s tough to get a read on where this will end up. Will more states take the high road that North Carolina has laid out? Or will it go the way of Florida and allow all keyword and brand name purchases so long as it’s clearly an advertisement?
Though it’s a slight distinction, it seems that a way through this is to allow firms to purchase key words including brand names, but disallow any brand name or branding phrases in the ad of the advertising law firm. This seems to be a balanced approach to keep firms’ advertising options open without directly infringing on the rights of a firm to control their own brand name.
- Is it Ethical for Lawyers to Bid on Attorney Brand Names in Google AdWords Ads? - October 18, 2019
- Fake Reviews for Law Firms and Professional Conduct Rules - May 31, 2019
Thank you Ken, excellent article. Next time one of our clients receives a cease and desist letter (or wishes to issue one) I will send them to this article.