This is the first installment of a legal blog series dealing with an ongoing lawsuit focused on competitive keyword marketing. The second and final installment, which predicts the outcome of the lawsuit and the possible implications, can be found here.
Well over a year ago, we described a state split in the online legal marketing world: North Carolina had decided that competitive keyword marketing – a form of paid online advertising – violated its Rules of Professional Conduct for legal marketing. Texas, on the other hand, decided that the practice did not.
Now, the technique of competitive keyword advertising is heading to court as Edible Arrangements, the company in the business of fruit baskets, is suing Google to stop its competitors from doing it.
Refresher: Keywords and Paid Advertising
Keywords, of course, are the specific words and phrases that ordinary human beings put into the search bar of Google (and occasionally Bing) when they want to find something on the internet. When they link a lot of keywords together in a phrase, it becomes a long tail search. The sheer variety of possible keywords or keyword searches does put limitations on keywords but, contrary to some claims, the concept of keywords has not died from this complication, yet.
What an internet searcher finds when they hit “enter” on their query of keywords is the search engine results page (SERP). Listed above the relevant and important (and organic) hits are paid advertisements that bring you to websites that have paid Google (through its AdWords program) to be at the top of the rankings. These ads cost a set amount of money per click, hence their moniker pay-per-click ads or PPCs.
Now, many companies or law firms pay Google for PPCs at the top of targeted keywords or long tail searches. Some hypothetical examples:
- A San Diego personal injury firm buys PPC ads to be at the top of searches for “San Diego personal injury attorney,”
- A Toyota dealership buys PPC ads for searches, performed within 50 miles of its location, for “used car,” or
- An Omaha, Nebraska criminal defense firm buys PPC ads for the search “can running away from police be used as evidence against me in trial for drug possession?”
Refresher: Competitive Keyword Marketing
But now imagine PPC ads being bought not for a targeted search within your field of practice, but rather for Google searches for a specific law firm. These searches, called branded searches, are commonly done by people who use search engines to find very specific websites – not search the web for the best website that can answer their question or query.
For example, a person who wants to get to McCormick Law Firm, but who doesn’t remember the web address for the firm’s site, can put the keywords “McCormick Law Firm” into Google and hit enter. In this case, “McCormick Law Firm” is the branded search.
Competitive keyword marketing is when Company A buys PPCs for branded searches for Company B. They’re when Hampton Law Office buys PPCs for the search “McCormick Law Firm.”
Suddenly, people who got on Google to find McCormick Law Firm are being hit with ads for Hampton Law Office.
Depending on where you are, competitive keyword marketing can violate the Rules of Professional Conduct for attorneys. In North Carolina, for example, competitive keyword marketing violates Rule of Professional Conduct 8.4(c), according to its 2010 Formal Ethics Opinion 14. Texas, on the other hand, has determined that competitive keyword marketing violates neither its version of ABA Model Rule 8.4(c), nor its version of Rule 7.01.
And Now: Edible Arrangements Sues Google Over Competitive Keyword Advertising
All of this is what is at the core of Edible Arrangements’ new, $209 million lawsuit against Google.
The complaint couches Edible Arrangements’ legal arguments in a basic trademark infringement case: It lauds the Edible Arrangements brand (and the products it represents) as purely sublime, and then paints Google as the devil incarnate for willfully and wantonly banking on this hard-earned brand by deliberately deceiving Edible Arrangements customers into believing that their competitors’ horrifically inferior junk is The Real Deal.
While the complaint (as complaints often do) makes the struggle sound like one between Good and Evil, the description of the results of competitive keyword advertising is in line with what one would expect:
“…when users search for ‘Edible Arrangements,’ instead of being shown the customary information about Edible Arrangements… appearing immediately to the right of the topmost search results…, to the right of the search bar they are instead shown ‘product listing advertisements’ that feature advertisements for, links to, and images of competitors’ products.”
According to Edible Arrangements, by allowing others to buy PPC ads for its branded keyword searches, Google should forfeit to them its approximately $9 million in profit, along with the approximately $200 million in lost business.