Lawyers Can Use Competitors’ Names to Advertise…But Should They?

If you’re looking to steal a rival law firm’s Google Thunder, the coast is clear (except in North Carolina) opines Professor Eric Goldman in a soon-to-be-published SSRN article, Regulation of Lawyers’ Use of Competitive Keyword Advertising.

Goldman explains that use of a competitor’s name as a keyword violates neither publicity rights nor trademark law, noting that “no trademark owner has achieved a courtroom victory in a competitive keyword advertising lawsuit since 2011.” As for legal ethics codes, Goldman takes the position that use of a competitor’s name as a keyword is not deceptive because it does not create the impression that the lawyer has any affiliation with the competitor. Moreover, Goldman points out that when consumers search a law firm name, they are often looking to find competitor ads, so “competitive keyword advertising is consistent with their expectations.”

Nevertheless, in 2010 Formal Ethics Opinion, North Carolina banned keyword ads by lawyers, finding that:

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.

Florida, however, took the opposite approach, and allows competitive keyword advertising so long as the resulting links are clearly labeled as advertising.

Not surprisingly, Goldman is a fan of competitive keyword advertising. He writes:

Competitive keyword advertising can facilitate that outcome. Some law firms are better-known than others, especially those that engage in mass-market broadcast or print advertising. When consumers search for these names at search engines, it creates an opportunity for competing lawyers to make themselves known to those consumers. Thus, competitive keyword advertising can reduce barriers to entry in the legal industry, especially helping new entrants challenge incumbent players….

and

Competitive keyword advertising helps lawyers cost-effectively compete with each other; which should produce the benefits we expect from enhanced competition, including higher quality legal services at lower prices to prospective clients.

Of course, as a professor, Goldman has the luxury of viewing appropriation of a rival’s name from a purely academic perspective. As a lawyer who’s devoted thousands of non-billable hours giving away high quality content online and enjoyed the benefit of strong SEO as a result, I’m not thrilled about competitors who want to poach off my efforts by using my name as a keyword.

That said, I don’t endorse North Carolina’s ethics ban on use of competitive keywords or worse, holding search engines financially responsible for selling trademarked keyword of a competitor. Instead, I’d give any competitors buying up my name exactly what they want:  increased visibility – albeit in the form of publicly e-shaming them for gaining an undeserved advantage on someone else’s coattails. Not the kind of lawyer that I’d want to hire.  After all, just because lawyers can legally and ethically use a rival’s competitive keywords doesn’t mean that they should.

Has anyone ever used your law firm name in a Google ad – or have you used this approach?  Comments are welcome below.