Use of a Lawyer’s Trade Name for Keyword Advertisements in an Internet Search Engine
Adopted: January 19, 2024
Opinion rules that the intentional selection of another lawyer’s unique firm trade name in a keyword advertisement campaign is prohibited, but that prohibition does not apply when the trade name is also a common search term.
Inquiry #1:
Lawyer A is a family lawyer in Durham. Lawyer A is setting up a keyword advertising campaign through an internet search engine. The campaign will allow Lawyer A to select specific words or phrases that will trigger Lawyer A’s advertisements for Lawyer A’s law firm website when a consumer uses the search engine to identify potential services.
Lawyer A is aware of the Ethics Committee’s prior opinion in 2010 FEO 14, where the committee concluded that it is a violation of the Rules of Professional Conduct for a lawyer to select another lawyer’s name as a keyword for use in an Internet search engine company’s search-based advertising program.
Lawyer B also has a law firm in Durham and offers competing services to Lawyer A. Lawyer B’s law firm practices under the unique trade name of “Strike Three Divorce Lawyers.” In light of 2010 FEO 14, Lawyer A will not select Lawyer B’s name as a keyword to trigger Lawyer A’s advertisements through the search engine. However, Lawyer A wants to select Lawyer B’s unique law firm trade name as a keyword to trigger Lawyer A’s advertisements.
Do the Rules of Professional Conduct permit Lawyer A to select Lawyer B’s unique law firm trade name as a keyword for Lawyer A’s keyword search engine advertising campaign?
Opinion #1:
No. As previously stated by the Ethics Committee,
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.
2010 FEO 14. Here, Lawyer A is intentionally purchasing the recognition associated with Lawyer B’s unique law firm trade name to direct—if not divert—consumers to Lawyer A’s website. Doing so creates confusion for consumers who are specifically looking for Lawyer B’s website based upon a search of Lawyer B’s specific and unique law firm trade name to the detriment of the consumer. As such, the conduct is “neither fair nor straightforward” and is, therefore, dishonest in violation of Rule 8.4(c).
Inquiry #2:
Same facts as Inquiry #1, except Lawyer B’s law firm trade name is “Durham Family Lawyers.” Lawyer A wants to select the generic and geographically based phrase “Durham family lawyers” as a keyword phrase for the keyword advertising campaign because Lawyer A expects the phrase would be a common search term employed by consumers looking for family law services in Durham. Lawyer A is aware that Lawyer B’s law firm trade name is the same as the intended keyword phrase for the advertising campaign.
Do the Rules of Professional Conduct permit Lawyer A to select a generic and geographically based phrase that also serves as a common search term if Lawyer B has already registered the term as a trade name?
Opinion #2:
Yes. The Ethics Committee’s conclusion in 2010 FEO 14 focused on “[t]he intentional purchase of the recognition associated with one lawyer’s name” for the purpose of directing or diverting consumers to the purchasing lawyer’s website. 2010 FEO 14. Inherent in this conclusion is the recognition that a lawyer’s name is unique and serves as a critical identifier for consumers searching for that particular lawyer’s services. As such, the intentional attempt to trade on such a specific, unique aspect of a lawyer’s identity and services was “neither fair nor straightforward,” and could reasonably lead to confusion by consumers as to where they could learn about, locate, or contact the specific person they sought. See id.
In this scenario, Lawyer B has selected a generic and geographically based trade name that also serves as a reasonably common search term for consumers seeking legal services. The trade name is not unique in the lexicon of consumers to specifically and exclusively identify Lawyer B; as such, it is not dishonest for Lawyer A to purchase the generic and geographically based trade name that serves as both a common consumer search term and that happens to be a competing lawyer’s trade name. To hold otherwise would be to hinder the ability of all consumers seeking legal services to discover all available options through the search of a common search term. Additionally, prohibiting Lawyer A from selecting a generic and geographically based trade name that also serves as a reasonably common search term for consumers would result in a “trade name land rush” of sorts, whereby lawyers would attempt to register the most common, generic search terms as trade names for the purpose of freezing out competitors from using common search terms in keyword advertising campaigns. Such protection for common search term trade names would benefit one lawyer or law firm to the significant disadvantage of the public employing common terms in their search for legal services. Accordingly, Lawyer A is not prohibited from selecting a generic and geographical phrase that also serves as a reasonably common search term for consumers in a keyword advertising campaign despite Lawyer B’s prior registration of the term as a law firm trade name.