The Cutthroat Marketing Strategy of Bidding on Another Lawyer’s or Law Firm’s Name in Google Ads, 1120 SCBJ, SC Lawyer, November 2020, #28

• Author: By Stephan Futeral
• Position: Vol. 32 Issue 3 Pg. 28

The Cutthroat Marketing Strategy of Bidding on Another Lawyer’s or Law Firm’s Name in Google Ads

Vol. 32 Issue 3 Pg. 28

South Carolina BAR Journal

November, 2020

By Stephan Futeral

Recently, the South Carolina Bar Ethics Advisory Committee issued Ethics Advisory Opinion 20-01 regarding whether a lawyer may engage in keyword advertising by using her competitors’ names as search terms for placement of Google Ads.^[1] Essentially, the Committee’s opinion paves the way for a lawyer to compete in paid keyword advertising that includes the names of competing lawyers and law firms.

This article examines the practice of bidding on a competing lawyer’s or law firm’s name in Google Ads 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 it is risky business for lawyers and law firms to market this way.

By way of background, I am an attorney, I own a digital marketing agency for lawyers, and I am certified by Google as a specialist in Google Ads. A couple of years ago, 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 Ads to hijack potential clients. In that lawsuit, Helmer alleged that Hark “purchased Plaintiffs’ names and numerous variants thereon as Google Ads in order to divert Plaintiffs’ potential clients to Defendants.” Specifically, Helmer alleged 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, Hark allegedly went a step further than just bidding on keywords related to the Helmer Law Firm.^[2]

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 businesses and industries including home services, furniture and bedding, automotive, and many more. For example, if you search Google for “Terminix,” you may see ads for Orkin and other competitors as in Figure 1.

Like Orkin, lawyers also “bid” on other lawyers’ names to trigger Google Ads by telling Google the amount a lawyer is willing to pay for each click on their ads. For example, I ran a search for a well-marketed Charleston lawyer’s name, and Google displayed the ads in Figure 2.

These lawyers’ ads did not display by accident. These ads displayed because the competing lawyer’s name is being used as a key term in these Google Ads campaigns.

Google’s policy on using competitor’s names as keywords in ads

We have established that bidding on a competitor’s name is a common practice among Google Ads marketers; the next question 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: “We don’t investigate or restrict trademarks as keywords.”^[3] However, Google is stricter 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.^[4]

Is bidding on competitors’ names an effective Google Ads strategy?

Google AdWords allows marketers to bid on competitors’ names as keywords so 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 costper- click (“CPC”) tends to be cheaper due to lower competition on these keywords.

• Brand awareness – By displaying your ads for searches for your competitor’s name or firm name, you are increasing your firm’s “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, he or she is 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.

• 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 leave your website (bounce) 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.

Can you be sued for using a competitor’s name in Google Ads?

There does not appear to be a clear trend towards establishing legal liability for bidding on a competitor’s name. For example, in Habush v. Cannon, 346 Wis.2d 709, 828 N.W.2d 876 (Ct.App. 2013), 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 . . . .”^[5] The Wisconsin Court of Appeals determined that the defendant’s keyword bidding on the competitor’s name was not an “unreasonable” invasion of privacy.^[6]

However, the court in Rescuecom Corp. v. Google Inc., 562 F.3d 123, 124, 129 (2d Cir. 2009) 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.^[7] 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, otherwise known as the Trademark Act of 1946.^[8]

In the New Jersey Helmer suit, Helmer asserted various claims including violation of the Lanham Act, violation of the New Jersey’s unfair competition statute, identity theft, and other claims.^[9] As mentioned at the beginning of this article, Hark allegedly took things a step further. Specifically, Hark used Helmer’s firm name in the ad copy as in Figure 3.

Helmer claimed that when a consumer clicked on the ad, they were directed to Hark’s website as in Figure 4.

Assuming Helmer’s claim was true, Hark’s actions appeared to be a fairly egregious attempt to deceive consumers. Ultimately, the case was resolved in 2018 when Hark & Hark signed a consent decree agreeing they would never engage in similar advertising tactics and to pay Helmer’s legal fees.

Is it ethical for a lawyer to bid on a competitor’s name in Google Ads?

South Carolina Bar Ethics Advisory Opinion 20-01 does not address the practice used by Hark & Hark to display Helmer’s firm name in Hark & Hark’s Google Ads. Albeit, Opinion 20-01 does not address this specific tactic of misdirection, it is likely that displaying another law firm’s name in a competing lawyer’s Google Ad runs afoul of South Carolina Rules of Professional Conduct 4.1 (a) regarding truthfulness in statements to others and Rule 7.1 (a) regarding misrepresentations of fact.^[10] What Opinion 20-01 does address is Hark’s practice of bidding on another lawyer’s or law firm’s name to display a competing law firm’s Google Ads. Specifically, Opinion 20-01 provides: [A] lawyer may purchase an internet competitive advertising keyword that is the name of another lawyer or law firm, in order to display a “sponsored” website advertisement. The lawyer should be mindful to comply with all advertising rules and should use care to ensure that no derogatory or uncivil message is conveyed. In addition, surreptitious redirection from a competitor’s website to a lawyer’s own web page via a hyperlink is prohibited under our Rules.^[11]

The South Carolina Bar Ethics Advisory Committee relied, in part, on State Bar of Texas Professional Ethics Committee Opinion No. 661 (July, 2016) wherein the committee opined that “a person familiar enough with the internet to use a search engine to seek a lawyer should be aware that there are advertisements presented on web pages showing search results.”^[12] However, this opinion does not reflect real-world online behaviors by consumers who are easily confused by the choices they see through search engine results. For example, Google continues to blur the lines between sponsored ads and organic search results. Ad search results have gone through several design changes over the years. Google previously used yellow and green “Ad” boxes to differentiate search ads from organic search results. However, as a part of a mid-January 2020 redesign to desktop search results, the company made paid links look more like unpaid results. Indeed, some law makers, such as Senator Mark Warner of Virginia, have accused Google of blurring the lines between paid ads and organic search results, calling it “yet another example of a platform exploiting its bottleneck power for commercial gain, to the detriment of both consumers and also small businesses.”^[13]

The North Carolina State Bar’s ethics opinion on the topic expresses that the sole purpose of intentionally bidding on another lawyer’s name is to mislead and to confuse consumers into clicking on the marketer’s ad to visit the “wrong” website. Specifically, North Carolina’s 2010 Formal Ethics Opinion #14 provides: 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 (D.C. 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.^[14]

Should you bid on other attorneys’ names?

Although Opinion 20-01 indicates that you may bid on another lawyer’s name as a keyword to trigger your Google Ads, I encourage you to consider the impact that this marketing strategy may have on your reputation and your goodwill with your colleagues. In the words of Benjamin Franklin, “It takes many good deeds to build a good reputation, and only one bad one to lose it.” Additionally, if you engage in bidding on other lawyers’ names using this strategy, your competitors may implement the same marketing technique, and the end result will likely be a “bidding war” over lawyers’ names where Google is the only party that profits.

Stephan Futeral is a partner with the law firm of Futeral & Nelson, LLC in Mount Pleasant and is the CEO of Just- Legal Marketing, LLC.

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Notes:

[1] ^[1] See generally, SC Bar Eth. Adv. Comm., Ethics Advisory Opinion 20-01 (2020) (“SC Bar Ethics Advisory Opinion 20-01”), https://www. scbar.org/lawyers/legal-resources-info/ ethics-advisory-opinions/eao/ethics-advi-sory-opinion-20-01/.

[2] ^[2]Charles Toutant, Suit Accuses Law Firm of Hijacfeing Competitor’s Prospective Clients Via Sponsored Searches, NJLJ (June 26, 2018, 5:40 PM), https://pluslexis.com/api/permalink/ a66e4920-8c93-4e3b-ba37-57c7b4257f84/?-context=1530671.

[3] ^[3] Advertising Policies Help: Trademarks, Google, https://support.google.com/adspolicy/ answer/6118?hl=en (last accessed Oct. 2, 2020).

[4] ^[4] Id. (“In response to trademark owner complaints, we may restrict the use of trademarks in ad text.”).

[5] ^[5] Habush u Cannon, 346 Wis.2d 709, 715, 828 N.W.2d 876, 878 (Ct.App. 2013).

[6] ^[6]Id. at 720, 828 N.W.2d at 881.

[7] ^[7] Rescuecom Corp. u Google Inc., 562 F.3d 123, 127-28 (2d Cir 2009).

[8] ^[8]Id. at 131.

[9] ^[9] PL's Verified Compl., Helmer, Conley & Kassel-man, PA. u Harfe and Harfe, 2018 WL 3084968 (D.N.J.).Helmer, Conleysfedddd

[10] ^[10] SC Rules of Prof’l. Conduct rr. 4.1, 7.1 (2019).

[11] ^[11] SC Bar Ethics Advisory Opinion 20-01.

[12] ^[12] TX Bar Prof’l Eth. Comm., Opinion No. 661 (July 2016), https://www.legalethicstexas. com/Ethics-Resources/Opinions/Opin-ion-661.aspx.

[13] ^[13]Cat Zakrzewski, The Technology 202: Nonprofit expands free security services for campaigns as election season heats up, Wash. Post (Jan. 24, 2020, 9:19 AM), https://www. washingtonpost.com/news/powerpost/ paloma/the-technology-202/2020/01/24/ the-technology-202-nonprofit-ex-pands-free-security-services-for-campaigns-as-election-season-heats-up /5e29d43688e0fa6ea99d342d/.

[14] ^[14] NC Bar Eth. Dep’t, 2010 Formal Ethics Opinion 14 (Apr. 2012), https://www.ncbar gov/for-lawyers/ethics/adopted-opin-ions/2010-formal-ethics-opinion.

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