• by Wendy Davis  @wendyndavis, Yesterday

The Supreme Court on Tuesday turned away personal injury law firm Lerner & Rowe, which had sought to revive a lawsuit over the use of its trademarks to trigger search ads for the rival firm Accident Law Group.

As is customary, the court didn't give a reason for its refusal to hear the appeal.

The court's move brings an end to a dispute that began in 2021, when Lerner & Rowe alleged that the Accident Law Group's use of the phrase “Lerner & Rowe” to trigger search ads was likely to confuse consumers, and therefore infringed trademark.

Lerner & Rowe argued to U.S. District Court Judge David Campbell in Arizona that phone call records supported the firm's claim. Specifically, the firm said the evidence showed that between 2018 and 2021, the Accident Law Group received 236 phone calls from people who mentioned Lerner & Rowe.

Campbell dismissed the lawsuit, and the 9th Circuit Court of Appeals upheld the dismissal, ruling that the 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.

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.

Lerner & Rowe then asked the Supreme Court to review the case, arguing that the use of its name by Accident Law Group “manipulates search engine results and confuses potential clients.”

The ads “misappropriate the goodwill and recognition” in Lerner and 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.

Accident Law Group countered that there was no reason for the Supreme Court to intervene in the case, arguing that the lower court's ruling was consistent with other 9th Circuit decisions “relating to consumer sophistication and online commerce.”

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