• by Wendy Davis  @wendyndavis, March 10, 2025

The personal injury law firm Lerner & Rowe has asked the Supreme Court to take up a dispute over the use of trademarks to trigger search ads on Google.

In a petition for review filed last week, Lerner & Rowe argues the unauthorized use of its trademark by another firm, the Accident Law Group, “manipulates search engine results and confuses potential clients.”

Lerner & Rowe claims in its petition that the “undisputed intent” of the Accident Law Group's search ads is “to capture potential clients” who are searching for Lerner & Rowe.

Those ads “misappropriate the goodwill and recognition” in Lerner & Rowe's trademarks, and harm consumers “who are diverted by 'bait and switch' advertising tactics or who may assume there is some of affiliation or sponsorship between the brand in the ad and the one they searched for,” Lerner & Rowe argues.

The law firm's petition for review comes around five months after a three-judge panel of the 9th Circuit Court of Appeals unanimously upheld a trial judge's dismissal of the lawsuit.

The 9th Circuit judges said in their ruling that the Accident Law Group's ads were not likely to confuse consumers due to the “generally sophisticated nature of online shoppers,” the “clarity of Google's search results pages,” and evidence showing that very few consumers were actually confused by the ads.

“Sophisticated consumers and those shopping for high-value products are likely to exercise a higher degree of care while shopping and are, therefore, less likely to be confused by similar marks,” Circuit Judge Roopali Desai wrote in an opinion joined by Circuit Judge Ana de Alba and District Court Judge Edward Chen.

The dispute began in September 2021, when Lerner & Rowe alleged in a trademark infringement lawsuit that the Accident Law Group's use of the phrase “Lerner & Rowe” to trigger search ads was likely to confuse consumers.

Lerner & Rowe argued to the trial judge that search users were actually confused by the ads, citing evidence that between 2018 and 2021, the Accident Law Group received 236 phone calls from people who mentioned Lerner & Rowe.

The 9th Circuit said in its ruling in favor of the Accident Law Group that 236 instances of confusion was minimal, considering how many ads appeared between 2017 and 2021.

The judges noted that evidence from Google showed that searches for the phrase “Lerner & Rowe” returned results featuring an ad from the Accident Law Group around 109,000 times between 2017 and 2021, and 102,000 times between 2018 and 2021.

“Evidence of 236 instances of actual confusion, therefore, constitutes only 0.216% of the total number of users exposed to the challenged advertisements,”  Desai wrote.

“No reasonable jury would conclude that this percentage is anything but de minimis and fails to support a finding of likelihood of confusion,” he added.