In Deltona Transformer Corporation v. The NOCO Company, No. 24-13590 (11th Cir. Aug. 4, 2026), the Eleventh Circuit held that keyword bidding, which is the process of “buying” keywords online visitors use to search for products, using trademarked terms does not constitute trademark infringement.
Deltona Transformer Corporation has manufactured vehicle-battery chargers marketed as “battery tenders” since the early 1990s. The term “tender” was first coined by the founder of Deltona based on his operation of a tender boat in World War II. Battery tenders charge a vehicle battery to full capacity and then maintain the charge without overcharging. Deltona registered the “Battery Tender” mark in 2008 and “Deltran Battery Tender” in 2013. The NOCO Company makes competing battery chargers. NOCO began advertising its products as “battery tenders.” Its conduct fell into several categories: (1) bidding on Deltona’s marks as keywords to trigger NOCO’s ads on Amazon; (2) using “battery tender” in the text of Amazon advertisements (e.g., “The most advanced battery tender for any vehicle” and “More Than Just A Tender”); (3) incorporating “battery tender” into Amazon product descriptions; and (4) referring to NOCO’s own products as “battery tenders” in communications with marketing firms and customers.
After sending cease-and-desist letters, Deltona sued in the Middle District of Florida for trademark infringement and unfair competition under the Lanham Act and Florida law. A jury found for Deltona on all counts, including federal false advertising, and awarded $1.3 million in actual damages and $5.75 million in punitive damages. The district court separately ordered NOCO to disgorge $12,135,943.70 in profits and permanently enjoined NOCO from using Deltona’s marks and the word “Tender.”
Writing for a panel that included Judges Lagoa and Kidd, Judge Newsom held that keyword bidding alone does not infringe on trademarked material, joining the unanimous consensus of other circuits to consider the question. The court reasoned that keyword bidding all takes place “behind the scenes” so there is no risk of consumer confusion. But the court upheld the jury’s determination that NOCO’s other activities, including using the phrase “battery tender” in advertisements, product descriptions, and conversations with customers and vendors, did infringe on Deltona’s trademarks.
NOCO also appealed the jury’s false advertising verdict. The court vacated that award because Deltona pleaded unfair competition and false designation of origin, not false advertising. Though Deltona argued that NOCO impliedly consented to trial on the false advertising claim, the court did not agree because all the evidence put forth related to the false advertisement claim was also relevant to Deltona’s other claims, so there would have been no reason for NOCO to object to the presentation of that evidence. The court emphasized the importance of putting adversaries on notice of claims against them.
The court affirmed NOCO’s liability under the Florida Deceptive and Unfair Trade Practices Act but held that Deltona could not recover monetary relief for harm to its reputation or goodwill. Under Florida law, those injuries constitute consequential damages rather than “actual damages” recoverable under Fla. Stat. § 501.211(2). The court affirmed the $12,135,943.70 disgorgement award, finding that NOCO’s conduct was willful and deliberate. It also upheld the permanent injunction, including a prohibition on NOCO’s use of the word “Tender” alone, even though “Tender” was not itself a registered mark, because the court reasoned that allowing NOCO to use the word “Tender” alone would allow NOCO to continue confusing consumers even without the complete phrase “battery tender.”