In an interesting and even slightly unnerving opinion from the United States Court of Appeals for the Ninth Circuit, the appeals court ruled in a keyword advertising dispute that the keyword “conquesting” is not per se unlawful. Keyword “conquesting” occurs when your competitor purchases your business’s name and/or trademark(s) as Google Ad keywords. This practice may be unnerving to business owners because it entails a competitor using your name or mark as a Google Ad keyword.
This case pertained to keyword advertising among personal injury law firms in the Phoenix, Arizona area, in which the defendant’s personal injury law firm bought a Google Ad keyword that was the name of the plaintiff’s personal injury law firm. Obviously irked and claiming significant customer diversion, a lawsuit was filed. The evidence showed that a low number of potential customers to the plaintiff’s law firm, who wound up calling the defendant’s law firm were apparently diverted – low enough (236 calls to the defendant’s law firm by people who mentioned the plaintiff’s law firm, which was under 10% of the total calls) to the point where the appeals court determined that evidence of actual confusion between plaintiff’s and defendant’s personal injury law firms was weak. One fact that may not have helped the plaintiff law firm’s cause was evidence that it had “engaged in conquesting in other contexts.” The appeals court ultimately upheld the ruling in the defendant’s law firm’s favor.
Accordingly, at least according to the Ninth Circuit Court of Appeals, unless there is a significant likelihood of confusion in the marketplace caused by using a competitor’s name or marks as a keyword, the keyword “conquesting” is not illegal.
The moral of the story here is pretty straightforward – make sure you own your business’s name and trademark(s) and Google Ad keywords to avoid the potential for diverted business and being unable to do much about it.
