• by Wendy Davis  @wendyndavis, April 23, 2025

The Supreme Court should turn away personal injury law firm Lerner & Rowe, which is seeking to revive a lawsuit over the use of its trademarks to trigger search ads, rival firm Accident Law Group argues.

“There is nothing extraordinary about the present case,” Accident Law Group argues in papers filed with the Supreme Court late last week. “The lower courts applied the appropriate law and concluded that Lerner & Rowe failed to carry its burden.”

The new papers come in a dispute dating to 2021, when Lerner & Rowe alleged that the Accident Law Group's use of the phrase “Lerner & Rowe” to trigger search ads infringed trademark because it was likely to confuse consumers.

Lerner & Rowe argued to a district court 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.

U.S. District Court Judge David Campbell in Arizona dismissed the lawsuit, and the 9th Circuit Court of Appeals upheld the dismissal, ruling that the ads weren't 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.

The appellate judges said in the ruling that 236 instances of confusion was minimal, considering 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.

Last month, Lerner & Rowe asked the Supreme Court to review the case.

The firm argues that the use of its trademark by Accident Law Group, “manipulates search engine results and confuses potential clients.”

The 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 argued in its petition for review.

But Accident Law Group says there's no reason for the Supreme Court to intervene in the case, arguing that the lower court's ruling “aligned with numerous Ninth Circuit decisions over the past 15 years relating to consumer sophistication and online commerce.”

The firm adds that “competitive keyword advertising” -- meaning using a rival's name to trigger a search ad -- is “a common marketing tactic."

Accident Law Group adds: “The ads all included the bold word “Ad” in the top left corner, making it clear to viewers they were encountering an advertisement. And the ads were all partitioned from other ads and organic results -- either by pronounced white space or by separate boxes."