"battery tender" isn't generic for guess what, but keyword advertising is fine

Deltona Transformer Corporation v. NOCO Company, --- F.4th ----, 2026 WL 2236806, No. 24-13590 (11th Cir. Aug. 4, 2026)

Competitors aren’t generally allowed the same freedom as consumers to “genericize” a term. Here, the 11th Circuit finds no error in a district court’s holding that “battery tender” wasn’t generic, despite calling the product category at issue by that name throughout the opinion (“specialized vehicle-battery chargers called ‘battery tenders’”—they recognize when a battery is fully charged so they don’t overcharge and degrade it, an innovation when introduced). [What is the name of this specialized subcategory, if not “battery tender”? This is an exercise for the reader because the court sure won’t tell you, but moments in the opinion offer “battery-maintaining chargers” or “trickle chargers.”]

Deltona federal registrations for “Battery Tender” and “Deltran Battery Tender.” NOCO made similar charges and advertised its own products as “battery tenders.” A jury found for Deltona on its federal and state infringement claims, and further concluded that NOCO had engaged in false advertising in violation of federal law. The court of appeals kicked out some of the theories—specifically, based on keyword purchases and Lanham Act false advertising—and remanded to recalculate damages.

The allegedly infringing conduct: (1) bidding on Deltona’s marks as “keywords” and using them to trigger NOCO’s ads in Amazon search results; (2) using the term “battery tender” in the text of its own Amazon ads; (3) incorporating the term “battery tender” in its product descriptions on Amazon; and (4) holding out its chargers as “battery tenders” in communications with marketing firms and customers.

Category (1) couldn’t infringe, but the rest could. NOCO’s position was summarized by a sales manager: An email drafted by Nook and sent by a NOCO sales manager to a potential customer said, “We understand Battery Tender is a well known brand, but most customers usually refer to the function (battery tender meaning a trickle charger), than the actual brand.” Internal documents showed that NOCO was willing to use “tender” and “battery” in ways that were “passive aggressive.”

The director of advertising at a company that handles Deltona’s marketing testified that one of its customer-service agents spoke to a consumer who had initially reached out to NOCO and was “very confused” when one of its employees “referr[ed] to [NOCO’s] products as a battery tender charger.” And an email exchange in the record shows that a retailer considering whether to stock a new line of battery tenders reached out to NOCO with an inquiry about Deltona’s product.

The jury held that Deltona was entitled to actual damages of $1.3 million and that NOCO had committed intentional misconduct or gross negligence, entitling Deltona to punitive damages of $5.75 million. The district court ordered NOCO to disgorge profits of over $12 million and issued a permanent injunction. The injunction prohibited NOCO from “selling, marketing, advertising, [or] promoting” its products using the terms “Battery Tender,” “Deltran Battery Tender,” “Deltran,” or “Tender,” the latter of which was included because “[t]here was abundant evidence that [the company’s] use of ‘tender’ on its own was done in a way that caused customer confusion and infringed [Deltona’s] Marks.” The injunction exempted keyword purchases and comparative advertising.

Deltona had a genericity survey, but the jury could have rejected it. The marks weren’t inherently generic because they were registered; they were descriptive with acquired secondary meaning. “The fact of registration puts a heavy thumb on the scale against genericness.” [Does that mean that the burden is clear and convincing evidence? Or something else?]

“Battery tender”

entails some level of abstraction—“tend[ ]” is more a metaphorical than literal description of what a battery tender does, which is to preserve the battery by maintaining its charge. That makes “battery tender” more like “vision center”—which might sell glasses and contact lenses but doesn’t literally sell “vision”—than, say, “liquor store”—which is nothing more than a store that sells liquor. Indeed, the term “battery tender” might even be suggestive; it “suggest[s] characteristics of the good[ ]” and seems to require at least some “effort of the imagination” to understand how the product works.

Sigh. Nothing has “inherent” meaning with the partial exception of onomatopoeia.

Deltona’s co-founder made up the term based on an analogy to a ship’s tender. [But if he made it up to identify this new category and distinguish it from prior types of chargers, that shouldn’t matter—“dry ice” didn’t have to be the term for solid carbon dioxide.] The court says that, “as a matter of historical fact, it’s not accurate to say that ‘battery tender’ referred from the very beginning simply to ‘a kind of battery-charging device,’” but doesn’t explain what the generic word was at the very beginning.

NOCO’s consumer survey found that 78% of 558 respondents reported that they believed that “Battery Tender [was] a type of product” rather than a reference to a particular brand. The jury was free to reject that, though; Deltona had challenged the survey’s methodology on the ground that it included people who might simply have been “exposed” to battery tenders [generic use again!] “from shopping near [them]” when walking through an automotive store or department.

The court then held that keyword bidding alone can’t be trademark infringement because the use of the plaintiff’s mark for keyword-bidding purposes occurs “behind the scenes.” [Twenty years later, they figure this out. Sincerely: thanks, Abitron!] Likelihood of confusion “turn[s] on what the consumer s[ees] on the screen and reasonably believe[s], given the context.” (Citing Eric Goldman and the Second, Ninth, and Fifth Circuit cases to similar effect.)

Use in product titles and product descriptions on Amazon, however, was potentially infringing, as was use in communications with marketing firms and consumers, so that part of the award was upheld. Unlike keyword advertising, “[t]he inclusion of ‘battery tender’ in the description automatically not only affected Amazon search results but also drove shoppers searching for Deltona’s battery tenders to NOCO chargers without alerting them in any way—through a ‘sponsored’ tag or otherwise—that they weren’t really looking at battery tenders.”

“A reasonable jury certainly could have concluded that these explicit statements to customers—that ‘battery tender’ was a generic term—were likely to confuse them.” (Confuse them about what? Not about source or sponsorship, given the statement that it was generic.)

The Florida Deceptive and Unfair Trade Practices Act damages award was also problematic, even though the Lanham Act violation could also violate FDUTPA. Monetary relief in the form of actual damages is available only to a “person who has suffered a loss as a result of a violation of this part,” and Florida law generally defines actual damages as “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered.” Thus, Deltona couldn’t base its damages on “harm to its reputation or goodwill,” because consequential damages like that aren’t compensable under FDUTPA.

Finally, the district court erred by instructing the jury on false advertising under the Lanham Act based on the same conduct. Deltona’s complaint alleged unfair competition and false designation of origin under the Lanham Act; it never separately articulated a false advertising theory. It was not enough to use the phrase “misleading description and representation of fact,” when read in conjunction with the complaint’s “numerous allegations involving advertisements” and its generic citation to § 43(a), to warrant a separate jury instruction on false advertising under § 43(a)(1)(B).  In context, the complaint clearly referred to § 43(a)(1)(A). NOCO neither expressly nor impliedly consented to trying a false-advertising claim.

The court of appeals had “substantial and ineradicable doubt” whether the jury was properly guided, so that part of the judgment was reversed.

Disgorgement was appropriate, given the willful conduct. [Recalculation doesn’t seem to be required because of how disgorgement is assessed—even kicking out the keyword advertising doesn’t seem to matter (though you’d think that sales made through keyword ads alone wouldn’t have the right causal relationship).]

Also ok: an injunction extending a ban on standalone use of “tender.” “[E]ven though NOCO seems to have ceased its misconduct, the record shows that it has, after brief interludes, repeatedly returned to infringing Deltona’s marks.” “In fashioning relief against a party who has transgressed the governing legal standards, a court of equity is free to proscribe activities that, standing alone, would have been unassailable.”

But the damage award needed to be reassessed, so remand for a new trial it was.