#LernerAndRowe

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🎯 Personal injury law firm beats Lerner & Rowe's appeal in Google ad case

On October 22, a federal appeals court ruled in favor of an Arizona personal injury law firm in a trademark infringement case filed by its competitor, Lerner & Rowe. The 9th U.S. Circuit Court of Appeals upheld a lower court's decision, granting summary judgment to the Accident Law Group (ALG). Lerner & Rowe had alleged that ALG's Google ads were tied to search terms associated with its brand, effectively diverting potential clients. The court rejected these claims, siding with ALG in the dispute over the use of keyword advertising.

The appeals court noted that despite Lerner & Rowe's "strong" trademark and its investment of over $100 million in marketing within Arizona, data from Google and ALG revealed that only a small percentage of callers seeking legal representation with ALG mentioned Lerner & Rowe, indicating minimal confusion. According to the court's opinion, ALG, also known as Brown, Engstrand & Shely, has been purchasing Google Ad keywords linked to Lerner & Rowe's search results since its establishment in 2015.

Lerner & Rowe, a law firm with offices across Arizona and several other states, filed a lawsuit against ALG in federal court in 2021, accusing the firm of federal and state trademark infringement and unjust enrichment. In 2023, U.S. District Judge David Campbell granted ALG's request for summary judgment, partially based on data from ALG's intake department. The data showed that only around 200 callers specifically mentioned "Lerner & Rowe," despite ALG's ads appearing over 109,000 times in searches for "Lerner & Rowe" between 2017 and 2021, according to Campbell.

On Tuesday, the appeals court affirmed that the district court was right to determine that this was "one of the rare trademark infringement cases suited for summary judgment." Andrew Gaggin, representing Lerner & Rowe, expressed disagreement with the ruling, stating that "hundreds of documented instances of confused consumers" should be considered a significant level of confusion. He also voiced concern that the decision could "open the floodgates" for similar practices in the future.

Maria Speth of Jaburg Wilk, an attorney representing ALG, stated that the appellate court "rightly upheld Accident Law Group’s right to engage in keyword advertising." While U.S. Circuit Judge Roopali Desai agreed with the court’s unanimous decision, she wrote a separate opinion, suggesting that the full 9th Circuit should consider whether bidding on and purchasing ad keywords qualifies as "use in commerce" under federal law, a key factor in proving trademark confusion.

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