June 1, 2009

GROWLING GOOGLE

Law firm sues Web giant in dispute over competitor’s ad

How would you feel if you typed your law firm’s name into an Internet search engine and saw a competitor’s name listed first in the results?

New Haven personal injury lawyers Michael Stratton and Joel Faxon were irate last week when they discovered that anyone Googling “Stratton Faxon” would find the firm’s web site listed in the second position.

Just above it, shaded in yellow to indicate a paid advertisement, was a listing labeled “Defending Patients’ Rights.” Smaller type showed the URL to be www.SGTlaw.com, which belongs to the Stamford personal injury firm of Silver Golub & Teitell.

Last Wednesday, Stratton Faxon filed suit against Google in New Haven Superior Court, claiming that the communications giant improperly sold advertising rights to the Stratton Faxon name. The complaint alleges tortious interference with a business relationship, violation of the Connecticut Unfair Trade Practices Act, and unjust enrichment, on grounds that Google paid nothing for selling the firm name.

Stratton Faxon has asked for a $50,000 pre-judgment lien against Google. It’s also pursuing an injunction to prevent Google from selling Connecticut law firm names as keywords that, when punched into the search engine, trigger ads for other businesses.

“I don’t think Google should make money selling my law firm’s name,” said Stratton.

Though Google is the target of the suit, the claim set off a war of words between two of the state’s pre-eminent law firms. Silver, Golub initially said it was unaware of the situation, denied any devious motives and added that Stratton Faxon could have addressed the matter with a phone call instead of a lawsuit. By Wednesday evening, the Silver, Golub ads no longer turned up in searches for Stratton Faxon.

On a larger scale, the suit is part of a national trend. Several other companies have taken legal action against Google after searching for their own business name and finding a competitor’s ad. In a well-publicized case, the software company FirePond filed a class-action trademark infringement suit against Google in federal court in Texas last month.

It was after reading about the FirePond complaint that Stratton did a search for his own firm name, and found the link to SGTlaw.com.

In the suit, Stratton alleges: “After contacting Google, it became clear that SGT was purchasing the Stratton Faxon name from Google to have their ads appear whenever a customer entered ‘Stratton Faxon.’”

In an interview, Stratton said: “If it wasn’t so damned deceptive, I’d be very flattered,” he said. “That’s the oldest advertising trick in the book, trying to take over the name of the competitor.”

Stratton said he has “no concept” how long this has been going on or how much Google has made from the Silver, Golub ad. Google’s ad rate is based on how many computer users click on the ad, which appears when certain keywords – also known as adwords – are typed into the search engine.

Stratton said his firm does no direct-to-consumer advertising because it receives 95 percent of its business from law firm referrals. “We’re going to sue Google,” said Stratton, “and we’re going to ask the Connecticut Bar Association for an ethics opinion.”

Google officials didn’t sound concerned about Stratton’s suit.

“Let me be very clear here,” said Google spokesman Andrew Pederson. “We are not selling [Stratton Faxon’s] name; we are selling ad space triggered by that term.

“It’s not really misleading, because you can clearly see that these are paid placements and sponsored links,” he said. “There is nothing confusing, from a consumer point of view, about the practice…From our point of view, the act of buying a competitor’s keyword to show your ad is not at all deceptive.”

‘Hundreds Of Keywords’

When name partner Richard Silver, of Silver, Golub, was initially contacted by a reporter last Wednesday, he said “this is the first I’ve heard of this.” He said he would have to speak to a marketing company the firm retains.

In a later e-mail, Silver said that his firm had contacted the marketing company and “confirmed that, in fact, other law firms were listed amongst the hundreds of keywords. Our provider advised us at that time that it is customary to include names of other law firms in a Google Adwords campaign. However, I have instructed our provider to remove all references to any other law firms.”

He added that “had any member of Stratton Faxon contacted our firm directly, we would have taken this action before now.”

Hartford lawyer Kimberly Knox, a member of the CBA’s attorney ethics committee, said Stratton’s question about the ethical implications of such Google advertising practices “is interesting and extremely relevant today.”

Knox, of Horton, Shields & Knox, said that attorneys’ use of Internet ads is an unexplored area that warrants careful investigation. “Usually law firms rely on public relations firms to do this, and they are not as sensitive to all the ethics rules that lawyers have to contend with,” Knox said.

Stratton, meanwhile, said he also found that doing a Google News search for the prominent Hartford personal injury firm of RisCassi & Davis yielded an ad for the Silver, Golub firm, even when there were no news items about RisCassi & Davis. Attorney James D. Bartolini, at RisCassi & Davis, said the firm’s partners were more than a little surprised. “We’re all scratching our heads, trying to figure out, how did it happen? Why did it happen? We don’t know,” said Bartolini.

He said he would “be shocked if Silver, Golub & Teitell thought that they were buying ‘RisCassi & Davis.’ Knowing the lawyers at Silver, Golub & Teitell, I can’t imagine they would seek to buy the name of RisCassi & Davis, or any other law firm.”

If the adword purchase was made by a marketing company, Bartolini said, “the customer should have a right to know what they’re buying.”•