Ohio Bans Competitive Keyword Advertising by Lawyers

June 19, 2021 · by Eric Goldman · in Content Regulation, Marketing, Publicity/Privacy Rights, Search Engines, Trademark

No one:

Absolutely no one:

Ohio Board of Professional Conduct (in the third decade of the 21st century….):

* * *

I guess we’re doing this again. It’s 2021, long past the time consumers have come to understand competitive keyword advertising, and yet a bar regulator issues an evidence-free and inappropriately brief opinion that competitive keyword ads deceive prospective clients. UGH.

The opinion addresses three rules of professional conduct:

Rule 7.1. “The simple act of purchasing a keyword, including another lawyer’s name, does not communicate anything about the purchasing lawyer or his or her services,” so no rule violation here.

Rule 8.4(c). “The purchase and use of a competitor lawyer’s or law firm’s name as a keyword for advertising is an act that is designed to deceive an Internet user,” so it violates this rule.

DAFUQ? There are many legitimate pro-social reasons why a lawyer might buy competitive keyword ads, including (1) comparative advertising, (2) offering complementary services, and (3) identifying potential victims of a bad lawyer’s services. Advertising efforts like these are not *designed* to deceive an Internet user; they are unlikely to actually deceive any Internet user, especially if the ad copy is clear about the advertiser’s identity; and any “initial” confusion an Internet user might experience can be quickly dispelled by the Internet user’s further investigation.

The board provided no citations for its empirical claim that competitive keyword advertising is *designed* to deceive, and there’s a mountain of evidence to the contrary. See, e.g., the FTC’s proceedings against 1-800 Contacts, which explained in excruciating detail how competitive keyword advertising benefits consumers–with citations.

As “support” for its interpretation, the board says: “It is possible that an unsophisticated consumer will not realize that the top search result is not that of the intended lawyer or law firm.” Again, DAFUQ? First, the board provides no empirical evidence for this claim. Who are these “unsophisticated” consumers? How many of them exist? Second, it’s been proven that many consumers searching for a brand name aren’t actually “intending” to find only search results about the brand. So the board is wrong in assuming that consumers have an “intended” lawyer associated with their search query. Third, how can the board manufacture this hypothetical without simultaneously addressing the possible educative impact of the associated ad copy? Fourth, the board implicitly acknowledges that “sophisticated” consumers will realize that the advertiser isn’t the “intended” lawyer, and the board’s rule categorically blocks that interaction. Given that, the board’s position is clearly overreaching, indefensible, and unconstitutional.

Rule 8.4(h). “The use of another lawyer’s name, without consent, to increase traffic to one’s own website and to further one’s own financial and business interests displays a lack of professional integrity. It calls into question the lawyer’s trustworthiness, sense of fairness to others, and respect for the rights of others, including those of fellow practitioners.” So there may be a Rule 8.4(h) violation.

I don’t know if the board solicited public input on this issue. If not, this kind of moralistic evidence-free statement is what happens when you only hear one side of the story. Many lawyers should be angry that the board smeared their reputation without having all of the facts.

* * *

I’ve complained before that restricting competitive keyword advertising by lawyers is like creating a quasi-intellectual property right, but without going through the proper legislative channels to do so. Conspicuously, the board’s opinion didn’t mention any intellectual property issues at all. That’s because the IP caselaw would reject the board’s result. Courts are clear that competitive keyword advertising alone doesn’t constitute trademark infringement:

Virtually no court has held that, on its own, a defendant’s purchase of a plaintiff’s mark as a keyword term is sufficient for liability.

Alzheimer’s Disease and Related Disorders Association, Inc. v. Alzheimer’s Foundation of America, Inc., 2018 WL 1918618 (S.D.N.Y. Apr. 20, 2018). Several other opinions have echoed this statement.

On the publicity rights side, the leading case remains Habush v. Cannon, which held that competitive keyword advertising didn’t violate the lawyers’ publicity rights.

Without any support from either trademark law or publicity rights law, the Ohio Board of Professional Conduct thus manufactured, in a 2 page opinion without any citations, a new intellectual property right for the state of Ohio.

* * *

The opinion also doesn’t engage with the other state bar opinions or rules directly on point. Here, the record is a little more mixed. In support of Ohio, North Carolina also banned competitive keyword ads by lawyers and even brought an enforcement action based on the rule. In opposition of Ohio, other states have mostly or completely blessed competitive keyword ads by lawyers, including Texas, Florida, and New Jersey. The Florida bar has invested extraordinary time researching this topic; and Texas issued a thoughtful opinion complete with citations. Why did Ohio diverge from those states, or at least not piggyback on the extensive efforts they invested in this issue? ¯\_(ツ)_/¯

* * *

I call your attention to my co-authored 2016 article, “Regulation of Lawyers’ Use of Competitive Keyword Advertising.” Yes, it’s directly on point. Yes, the Ohio Board of Professional Conduct should have read it before opining.

If I were an Ohio lawyer, I would contact the board asking them to reconsider this opinion and allow for public comment. The board can and should do better. I might also submit an FTC complaint to alert them of the board’s brazen attempt to restrict comparative advertising in an anti-competitive way.

Citation: Ohio Board of Professional Conduct Opinion 2021-04, “Competitive Keyword Online Advertising,” issued June 11, 2021

More Posts About Keyword Advertising

Ohio Bans Competitive Keyword Advertising by Lawyers

Comments and Pings