Can lawyers use a competitor’s name as a keyword to market their own law practice? Although Google allows law firms’ to purchase competitors’ names as keywords, at least two states — North Carolina and South Carolina — forbid this practice, finding it inherently deceptive. By contrast, Florida and Texas —allow lawyers to use keywords to advertise with the caveat that the ads must be designed so as not to trick consumers into thinking they are going to one firm’s website when they are instead lead to another.
But the bar regulations don’t much matter because increasingly, law firms whose names have been appropriated are suing competitors and winning. As the Daily Report Online reports, a Georgia court recently enjoined a Texas marketing firm called ELM from running ads for a law firm that used a rival firm’s trade name to draw traffic to the advertising firm’s site. Further compounding the confusion, the marketing company used photos of the rival firm’s site as background for the ads and included phone numbers to call centers where operators were instructed to use a generic greeting so that callers would believe that they had reached the rival firm’s answering service.
By the way, this isn’t the first time that the ELM was enjoined from deceptive practices. Last March, a federal district court in Ohio issued an injunction barring ELM from referencing other competitors in its online ad campaigns.
From my perspective, the practice of buying a competitor firm’s keywords and trading off their hard-fought online visibility to drive traffic to one’s own site is viscerally wrong. Moreover, the practice makes it more difficult for consumers to exercise their unfettered right to the attorney of their choosing by sending consumers on a wild goose chase to find the firm that they originally searched for.
That said, grievance committees aren’t the appropriate forum to adjudicate deceptive advertising practices. Instead, lawyers who choose to advertise online ought to be subject to the same standards as any other company including potential liability for deceptive marketing practices. That ought to be reason enough to discourage firms from implementing this approach to advertise legal services.