Recently, I was interviewed by the New Jersey Law Journal to get my opinion regarding a lawsuit by the New Jersey law firm of Helmer, Conley & Kasselman (Helmer) against a two-lawyer firm, Hark & Hark (Hark), for allegedly using Google AdWords to hijack potential clients. Essentially, Helmer alleges that Hark “purchased Plaintiffs’ names and numerous variants thereon as Google AdWords in order to divert Plaintiffs’ potential clients to Defendants.” Specifically, Helmer alleges that Hark was bidding on keywords (and phrases) such as “helmer conley,” “helmer,” “helmer law office,” “helmer kasselman,” “helmer lawyer,” “helmer defense,” “conley law,” and “helmer and associates” so that a search within Google for these terms displayed advertisements for Hark’s law firm. As I will explain below, Hark allegedly went a step further than just bidding on keywords related to the Helmer Law Firm.
This article examines the practice of bidding on a competing lawyer’s or law firm’s name in Google AdWords from three important perspectives: (1) a marketing perspective; (2) a legal liability perspective; and (3) a professional ethics perspective regarding lawyer advertising. This article also explains why this is risky business for lawyers and law firms to market this way.
1) Using Another Lawyer’s or Law Firm’s Name to Trigger Your Sponsored Google Ads
Using a competitors’ name as a keyword to trigger Google ads is a common practice among many businesses and industries including home services, furniture and bedding, automotive, and many more. Although there are too many examples to list here, here are a couple. If you search Google for “Terminix,” you may see ads for Orkin and other competitors as follows:
As another example, if you search Google for “Pier 1,” you may see an ad for “Rooms to Go” as follows:
Like Orkin and Rooms to Go, lawyers also bid on other lawyer’s names to trigger Google ads. For example, I ran a search for a young local lawyer’s name that I am familiar with, and Google displayed the following ads:
Both of the websites listed in these two ads belong to another competing lawyer (two different ads and websites – same lawyer). In another example, I searched for the name of a prominent criminal defense attorney in Charleston, South Carolina, and Google displayed the ad of another prominent criminal attorney who formerly was South Carolina’s Attorney General and is now in private practice:
These lawyers’ ads didn’t display by accident. These ads displayed because the competing lawyer’s name is being used as a key term in these Google AdWords campaigns. Oftentimes, lawyers such as the one above have no idea that the marketing agency working with their law firm is actively bidding on competing lawyers’ names.
Google’s Policy on Using Competitor’s Names as Keywords in AdWords
Now that we have established that bidding on a competitor’s name is a common practice among Google AdWords marketers, the next issue is whether Google allows marketers to bid on keywords this way. The answer is – yes.
From Google’s perspective, there is little to no restriction on using your competitors’ trademarks and names as keywords to trigger your Google ads. Specifically, Google states: “Google will not investigate or restrict the use of trademark terms in keywords, even if a trademark complaint is received.” However, Google is more strict about including a competitor’s name or trademark in your ad text. If Google receives a complaint, Google may restrict the use of the trademark in your ad text or even stop your ad from running.
Is Bidding on Competitors’ Names an Effective Google AdWords Strategy?
Now that we know that Google AdWords allows marketers to bid on competitors’ names as keywords, the next question is whether this can be an effective marketing strategy. The short answer is – it depends. Let’s take a quick look at some of the pros and cons of bidding on your competitors’ names.
Pros of Using a Competitor’s Name:
Lower Cost-Per-Click – The cost-per-click (CPC) tends to be cheaper due to lower competition on these keywords. For example, the CPC for the term “attorney” is MUCH HIGHER than the term for my law firm “Futeral and Nelson.”
Brand Awareness – By displaying your ads for searches for your competitor’s name or firm name, you are increasing your “brand awareness” with potential clients.
Cons of Using a Competitor’s Name:
Low Click Through Rate (CTR) – When someone searches for a specific lawyer or law firm online, it is likely that they are most interested in connecting with that lawyer or firm. This means that not many people will click on your ads and thereby cause a low CTR. Although you aren’t paying when they don’t click on your ads, a low CTR will decrease your Quality Score which makes it more expensive for your ad to show.
High Bounce Rate – When someone does click your ad, they are expecting to see the other attorney’s or law firm’s website. Typically, many of your site’s visitors simply click away when they don’t see what they expected to see. The result for your campaign is that you end up paying for lots of clicks without results.
A Potential Ads War – When you bid on a competing lawyer’s name, you may be enticing your competition to bid on your name and start poaching some of your potential leads. As you bid on their name, it will make it more expensive for them to bid on their own name, and vice versa.
2) Can You Be Sued for Using a Competitor’s Name in AdWords?
After spending considerable time conducting legal research on the subject of legal liability for bidding on a competitor’s name, there does not appear to be a clear trend towards establishing liability. For example, a Wisconsin law firm brought suit under that state’s privacy law that entitles anyone “whose privacy is unreasonably invaded” to equitable relief, compensatory damages, and reasonable attorney fees. Under that law, privacy includes “the use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person . . . .” The Wisconsin Court of Appeals determined that the defendant’s keyword bidding on the competitor’s name was not an “unreasonable” invasion of privacy.
However, the court in the case of Rescuecom Corp. v. Google Inc. took a different view based upon trademark laws. Rescuecom sued Google for trademark infringement because Google recommended the “Rescuecom” trademark to businesses, including Rescuecom’s competitors, that were buying keywords through AdWords. Although Rescuecom ultimately dropped the case, the Second Circuit did hold that Google’s use of the “Rescuecom” trademark constituted a “use in commerce” under the Lanham Act.
In the New Jersey suit of Helmer, Conley & Kasselman v. Hark & Hark, Helmer asserts various claims including violation of the Latham Act, violation of the New Jersey Unfair Competition Law, Identity Theft, and other claims. As mentioned at the beginning of this article, Hark allegedly took things a step further. Specifically, Hark allegedly used Helmer’s firm name in the ad copy as follows:
Helmer claims that when a consumer clicked on the ad, they were directed to Hark’s website as follows:
Assuming Helmer’s claim is true, Hark’s actions appear to be a fairly egregious and purposeful attempt at deceiving consumers. At this stage, the lawsuit has just begun. That being said, the New Jersey court has already issued a temporary restraining order and preliminary injunction prohibiting Hark from continuing to market on Google AdWords this way.
3) Is It Ethical for a Lawyer to Bid on a Competitor’s Name in AdWords?
Aside from legal liability, attorneys and law firms may face serious ethical consequences for bidding on a competitor’s name. For example, the lawsuit filed by Helmer also claims that that Hark violated the following New Jersey ethics rules as follows:
Rule 7.1(a) of the New Jersey Rules of Professional Conduct provides that “[a] lawyer shall not make false or misleading communications about the lawyer, the lawyer’s services, or any matter in which the lawyer has or seeks a professional involvement.”
Rule 8.4(c) of the New Jersey Rules of Professional Conduct provides that “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”
New Jersey’s rules are nearly identical to the corresponding American Bar Association Model Rules of Professional Conduct. Rule 7.1, provides:
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.
Rule 8.4 (c) provides:
“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”
As of now, not every state bar association has weighed in on whether it is unethical to bid on a competing lawyer’s name in AdWords. That being said, several states that have examined this marketing practice have found it to be unethical. For example, in Florida, Advisory Opinion A-12-1 provides that the use of “false, deceptive or misleading [meta tags] is prohibited” and that this prohibition also applies when “when lawyers purchase advertising on a search engine keyed to specific words or phrases.”
North Carolina has also determined that bidding on a competing lawyer’s name is unethical. A 2010 Formal Ethics Opinion #14 states:
It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). 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.
Attorneys Should Stop Bidding in AdWords on other Attorneys’ and Law Firms’ Names
In the end, nothing good will come from trading on the names of your fellow bar members. By engaging in questionable marketing tactics, especially if those tactics are successful, you are risking an ethical or legal complaint against you.
Additionally, attorneys must be highly selective regarding the marketing agencies they hire and well-informed regarding the marketing tactics their agency may use to drive leads. Although there are many marketing agencies that cater to lawyers and law firms, most of these agencies have no inkling of the fine legal and ethical line lawyers and law firms must walk when marketing to potential clients.