Can Lawyers Buy Keyword Ads On Each Others' Names At Google? (Forbes Cross-Post)

Can Lawyers Buy Keyword Ads On Each Others’ Names At Google? (Forbes Cross-Post)

“Competitive keyword advertising” occurs when a company buys the trademarks of its competition as keywords for search engine marketing. In the 2000s, it was one of the most interesting and hotly-contested issues of Internet Law as trademark owners filed many lawsuits and sought legislative protection. In the last few years, however, the issue has mostly fizzled out. A major 2011 ruling in the Ninth Circuit Court of Appeals cleaned up many of the legal doctrines that trademark owners were relying upon, and the Tenth Circuit extended that approach in 2013 in a devastating trademark owner loss. Since the 2011 ruling, I am not aware of any trademark owner winning a competitive keyword advertising case in court, even in cases with plaintiff-favorable facts.

As the competitive keyword advertising legal battles wind down in other industries, the fight is still raging in the legal profession. That’s not particularly surprising. Bar associations have fought against lawyer advertising for decades, and lawyers–as late technological adopters–often fight battles over the last generation’s technology.

Indeed, many lawyers believe that competitive keyword advertising by lawyers is improper despite the fact that courts routinely green-light the practice. In 2012, North Carolina adopted an ethics rule saying that lawyers using competitive keyword advertising are violating their professional responsibility duties, and last year it publicly disciplined a lawyer for such advertising.

I’ve co-authored a short article, Regulation of Lawyers’ Use of Competitive Keyword Advertising, that examines competitive keyword advertising by lawyers. It shows how the law has become more tolerant of competitive keyword advertising, including trademark law, publicity rights law and the rules governing attorney advertising. The article concludes with a call-to-action to repeal the North Carolina legal ethics rule against competitive keyword advertising, the last remaining legal impediment to competitive keyword advertising by lawyers.

The article is forthcoming in the University of Illinois Law Review, but you can check it out now at SSRN. We can still make minor changes, so we’d welcome your feedback. The abstract:

Lawyers have enthusiastically embraced search engine advertisements triggered by consumers’ keywords, but the legal community remains sharply divided about the propriety of buying keyword ads triggered by the names of rival lawyers or law firms (“competitive keyword advertising”). This Essay surveys the regulation of competitive keyword advertising by lawyers and concludes that such practices are both beneficial for consumers and legitimate under existing U.S. law—except in North Carolina, which adopted an anachronistic and regressive ethics opinion that should be reconsidered.

Some of my other articles related to competitive keyword advertising:

* Deregulating Relevancy in Internet Trademark Law
* Brand Spillovers
* Online Word of Mouth and its Implications for Trademark Law
* A Coasean Analysis of Marketing