When I was a puppy law clerk working for an old time criminal defense lawyer, a call came into the office seeking help with a social security disability claim. My boss, affectionately known as Uncle Milty, told me to send it to Harry Binder. Even then, representing claimants in social security disability was a specialty niche, and the guy who did it was Binder.
That would be Binder & Binder today. While talk of branding today is mostly hogwash, the name Binder & Binder has long been the established name in the New York bar, and maybe the country, for handling that very specialized sort of work. They didn’t have the flash of Harry Lipsig, who was the dean of personal injury, but there was never any question about where to send a SS case.
So if someone wanted to challenge Binder in the social security market, they would have to do some very hard work, establish their bona fides and really produce to knock the king off his thrown, right? Or they could just pay off Google.
From the Legal Skills Prof Blog,
A California federal district court just held that a law firm specializing in disability law was liable under the Lanham Act for purchasing the law firm name “Binder & Binder” as a Google search term in order to drive traffic to its website. The case is Binder v. Disability Group Inc., C.D. Cal., No. 07-2760, (1/25/11).Having concluded that Binder & Binder held valid trademark registrations, the court applied the eight-factor test for likelihood of confusion as set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 204 USPQ 808 (9th Cir. 1979). The court found that the factors addressing similarity of the marks, the strength of the plaintiff’s marks, the similarity of services, the intent of the defendant, and marketing channels all weighed in favor of likelihood of confusion.The court also found actual confusion, based on the results of a survey, witness testimony, and other evidence.
The court awarded Binder & Binder $292,000.00 in lost profits and enhanced damages for willful infringement by the competing law firm.
There aren’t many of us who have names worthy of such interest, that competitors would actually pay Google to drive people seeking them to another place, a place where people are not looking, are not interested, are not desirous of their services.
Notably, the court found “actual confusion,” not merely theoretical or the threat of confusion. When someone searches for something on Google, they expect Google to deliver an honest response, the real answer to their question. They sometimes forget that Google is just another business selling whatever it can, including the results to your search.
More to the point, however, is that this is where lawyers have turned to make a living, sponging off the hard work and reputation of others, anticipating that enough people will be confused and mistaken click on the wrong link so that they will get business intended for another.
Lawyers have happily become cannibals, eating their own for a buck.
Thirty years later, I would still send a case to Harry Binder if someone called seeking representation for a social security disability claim. I certainly wouldn’t take the case, as it falls way outside my area of practice, and Binder has continued to perform with excellence in its niche. But I would likely Google the name to get the telephone number, and I would fully expect Google to send me to the right place.
For those of you inclined to buy the Binder name, or my name, or some other lawyer or firm’s name, you’ve demonstrated two things: You’re unworthy of whatever traffic you’ll get and you’re a sleazeball. You want the traffic that seeks Binder and Binder? Be as good as Binder & Binder. Establish your competence the way Harry Binder did, case by case, year after year. Get the traffic because people out there want you, not because you bought a better lawyer’s name.
Unless, of course, you’re in Canada, where being sleazy was held not to be deceptive and received the court’s seal of approval.
The mantra of the Slackoisie has become “you are what Google says you are.” Baloney. Any fool can buy a search term on Google. For the moment, internet users remain relatively naive about what they’re spoonfed by Google and why, ignorantly assuming that whatever the search engine spews is reliable. I’ve urged the start of the Fifth Page Movement as a way to defeat the incentive to be as sleazy and deceitful as possible. It’s yet to take off, but I hope that people will come to realize its efficacy.
In the meantime, if the best you hope to achieve as a lawyer is to deceive enough people to make a living, or make a killing, then you deserve to be called a sleazeball. When you sat in law school and dreamed of what you would be ten years down the road, did the name “Binder” come up? What about the word “sleazeball?”
Or did you dream of being a great lawyer?
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Scott,
I think you underestimate the desirability of a name as a search term. I don’t think the name needs the notoriety of Blinder & Blinder, but just needs to be seen as a target in a particular market. A while back, I discovered that a lawyer-coach was using Solo by Choice as a Google ads word. Fortunately, she was mortified when she discovered it (another situation of outsourcing her marketing) and she removed it immediately. There are also situations where people will buy a competitor’s keyword to harm the competitor and gain an advantage. [Edit. Note: Link deleted.] In a small town market, with a couple of unique names, this can be a major problem – and I’m glad to see this case because my understanding up until now was that other companies names were open use for meta-tags, adwords, etc…
I’m not sure why you think I underestimate it. Is “sleazeball” not sufficiently descriptive to capture my disgust?
Obviously pretending to be someone else is wrong, but there are deeper issues about SEO and “Fifth Pages” and the like. It’d be nice if clients somehow could know which lawyers were diligent, competent, and loyal, but I’m not aware of any means for that. If not SEO, then what? Avvo?
A lot of folks say that “reputation” should determine it, but that’s a cop-out. Clients have no way to investigate an attorneys’ “reputation” throughout the legal community, and that “reputation” is often more deceiving than helpful. I know plenty of “respected” lawyers who are serial liars and should have been disbarred years ago.
I have no solution for this, I’m just bemoaning the absence of a real solution. For your typical person who just had their spine fractured or was just arrested for a felony, they have four options (1) ads on a bus (2) Google (3) Avvo (4) asking someone they know for a personal reference. We all claim #4 is pristine and perfect, but of course it’s not.
I hadn’t read of the Fifth Page movement before. The funny thing is that I recently had a client who told me that he found me by doing that very thing – going deeper into the Google results on the assumption that the attorneys there would charge less.
Just know that if your Fifth Page movement takes off, it will last for only 10 seconds before SEO companies figure a way to get their clients there.
Never use someone else’s name or trademark to promote your business. Doing so is stupid and immature.
This comment misses the philosophical underpinning of Greenfield’s posts.
The post’s thesis is clear enough. If lawyers would stop elevating the form of marketing above the substance of lawyering, then clients who stumble upon lawyers – through whatever 4 means you mention – would be well represented.
The theme of his post – and his marketing posts more generally – is protecting clients.
Yes, this means a lawyer starting out won’t make six figures. An ethical young lawyer will refer out cases he can’t handle; or will associate with a senior lawyer. An ethical old lawyer won’t do “door law.”
In the beginning of a lawyer’s career, the lawyer will “suffer” by not taking cases he isn’t qualified to handle. Clients, however, will always be well served.
It’s a culture of competence, designed for the benefit of clients, that his post speaks to.
It’s unfortunate that so many people either miss the point for want of intellectual competence; or because cognitive dissonance requires us to never recognize our own limitations.
A small technical clarification: Google doesn’t sell positions in their search results. What Google sells–what the other law firm bought–are ads displayed on the same page as the search results. A user could be forgiven for not noticing the difference, since some of those ads are displayed directly above the search results, and in the same font, with only a slight change in background color to distinguish them from the actual search results.
By the way, the fifth page of Google search results also has ads on it.
I didn’t miss the post’s thesis. I raised a very serious related issue: that clients in general don’t know lawyers and don’t know how to find them.
I can’t tell if you agree with that or not; it seems to me you’d rather ignore that, and instead claim that clients who “stumble upon lawyers” will “be well served” if all lawyers band together to focus on substance over marketing.
It’s a charming hypothetical.
Now, back in reality, what should we do about the fact that most clients don’t know how to find a good lawyer?
From the posts on the case, I was confused about the nature of what they did — if all they did was make a search for “Binder” a trigger for their own (accurate) ads, then I would have found that sleazy but by no means illegal or unethical.
However, it seems they went a couple steps further. The ad displayed falsely used the terms “Binder” to make it look like it was the “Binder” link, and then users were taken to a page that falsely claimed affiliation with “Binder.” They deserved to get walloped with every penny of that judgment.
Great. Now I’m going to start getting calls for people who need a court martial defense. Know anybody who does that sort of thing?
The “reality,” as you say, is that the best way to ensure clients receive competent lawyers is ensuring there are competent lawyers. It’s not hard to imagine such a system.
There are not that many *incompetent* doctors. Some are better than others, and not all are great. And yes, there are a few bad doctors. (Most medical malpractice cases involve the same doctors, making mistake after mistake.)
Yet most people who stumble into a doctor’s office aren’t going to receive the medical equivalent of a sleeping lawyer. Most of the time, a doctor will be somewhere between competent, and good.
Can the same be said of the average client who stumbles into a lawyer’s office after a Google search?
If the State Bar wants to protect clients, it would – among many other things – crack down on sleazy advertising. Lawyers who have been practicing for 2 years and who ask basic questions about criminal law would not be allowed to call themselves “highly experienced” or “accomplished” or anything else. Save the corporate buzzwords and sleazy sales copy for people peddling cosmetics.
In business, if you can make the sale, you make the sale – even if the buyer is making a huge mistake. With lawyers, shouldn’t we demand something higher?
I was referring to this paragraph:
What I meant is that there are many people whose names are more valuable than they would think. Even a lawyer who is well reputed in a small community but not known anywhere else in the country should take heed of your post, because someone may be using their name as well. Your warning applies not just to the few outstanding lawyers at the top, but also to many others who are very good and have strong reputations – and are at risk for having their names misappoppriated.
Thanks for the explanation. While I’ve no doubt you’re right, the problem becomes one of fiscal proportionality. This wasn’t a matter of Google doing the right thing, but Binder trademarking its name and litigating against its abuser. Better that lawyers stopped behaving like sleazeballs than lawyers (especially small firm or small market) having pay and fight the sleazeballs. This is less a warning to keep an eye out for sleazeballs than an admonition to lawyers to stop being sleazy.