Revisiting Competitive Keyword Bidding

In an earlier article that appeared in Ad Age, "The Case for Conquest Advertising – Why Competitive Keyword Bidding Is Fair," we reviewed and analyzed the Ninth Circuit's decision to uphold the right to bid on keywords without invoking trademark infringement.¹ At the time, the legal consensus was that such practices are generally permissible, so long as they do not cause consumer confusion.

Update
Recently, the Supreme Court of the United States declined to hear Lerner & Rowe, P.C.'s appeal of the Ninth Circuit's decision concerning its trademark infringement suit against its competitor, Accident Law Group. The underlying case centered on Accident Law Group's use of "Lerner & Rowe" as a keyword to boost their visibility in Google search results and Google ads. The Ninth Circuit's dismissal reasoned that there was insufficient evidence of consumer confusion.