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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-13590
DELTONA TRANSFORMER CORPORATION,
Plaintiff-Appellee,
versus
THE NOCO COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-00308-CEM-LHP
Before NEWSOM, LAGOA, and KIDD, Circuit Judges.
NEWSOM, Circuit Judge:
Deltona Transformer Corporation makes and sells specialized vehicle-battery chargers called “battery tenders.” A battery
tender “tends” the vehicle’s battery, so to speak, by (1) charging it
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2 Opinion of the Court 24-13590
until it’s fully charged and then (2) maintaining a full charge—importantly, without overcharging (and thus degrading) the battery.
Deltona owns the federally registered trademarks “Battery Tender” and “Deltran Battery Tender.”
The NOCO Company makes similar chargers. Beginning in
2014, NOCO began advertising and promoting its own products as
“battery tenders.” After sending several cease-and-desist letters,
Deltona sued NOCO for trademark infringement and unfair competition under both state and federal law. A jury found for Deltona
on all counts, and further concluded that NOCO had engaged in
false advertising in violation of federal law. The district court ordered NOCO to disgorge its profits and permanently enjoined the
company from using Deltona’s marks.
NOCO now asks us to reverse the district court’s denial of
its motions for judgment as a matter of law and for a new trial, both
of which challenged the jury’s verdicts regarding the trademarks’
protectability, infringement, unfair competition under state law,
and damages. NOCO also asks us to reverse the district court’s
denial of its motion for judgment as a matter of law challenging the
jury’s verdict regarding false advertising, a claim that it says wasn’t
properly pleaded or tried and therefore didn’t merit a jury instruction. Finally, NOCO seeks to vacate the district court’s disgorgement order and permanent injunction. After careful consideration,
and with the benefit of oral argument, we AFFIRM in part,
REVERSE in part, and REMAND for a new trial on damages.
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I
A
Deltona began making battery-maintaining chargers in the
early 1990s. At the time, most vehicle-battery chargers didn’t know
when to stop; “[t]hey would continue to provide power to a battery
until after it was fully charged.” Trial Tr. vol. 1, May 17, 2021, at
144, Dkt. No. 399 (emphasis added). As explained by Deltona’s cofounder and CEO, Michael Prelec, Sr., “[Y]ou either set a timer or
just [] plugged it in and let it go until you smelled it get hot.” Id. at
184–85. Prelec testified that Deltona developed a “smart” battery
charger that would stop when it “recognize[d]” the battery was full.
Id. at 144. “This design,” he said, “saved a lot of batteries from being overcharged and prolonged the life and the quality of the battery.” Id.
Prelec further explained that his father, also a co-founder,
named these products “Battery Tenders” as an homage of sorts to
his experience in World War II. As a Merchant Marine captain,
Prelec’s father manned small boats called “tenders,” which ferried
supplies and wounded soldiers between land and larger ships that
couldn’t dock in shallow waters. Just as the tenders took care of—
or “tended”—larger ships, the battery tender, Prelec’s father believed, took care of—“tended”—batteries.
To develop a reputation and build goodwill in its early years,
Deltona attended consumer and industry trade shows, advertised
on TV and in magazines, and sponsored teams in car races and
boats on fishing shows. Deltona also made private-label battery
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tenders for Harley-Davidson and maintained “co-branding relationships” with other partners, pursuant to which it placed its Battery Tender logo next to those of Lotus, Lexus, and AAA on its
products. Deltona has owned the federally registered trademarks
“Battery Tender” since 2008 and “Deltran Battery Tender” since
2013. 1
By 2014, Deltona was selling more than a million battery
tenders a year, and it was considered an established brand in the
battery-charging industry and community, especially in powersports. Prelec testified that, as a result of Deltona’s promotional
efforts, “people started calling [him] Mr. Battery Tender.” Id. at
196.
NOCO also makes battery-related products. In 2009, it entered the battery-charger market by acquiring a company called
Advance Fishing Technologies. Like Deltona’s battery tenders,
NOCO’s products both charge the vehicle’s battery and maintain
its charge—again, without overcharging.
Deltona alleged that, beginning in 2014, NOCO began promoting its own chargers as “battery tenders,” thereby infringing
Deltona’s marks. NOCO’s allegedly infringing conduct can be
grouped into four categories: (1) bidding on Deltona’s marks as
“keywords” and using them to trigger NOCO’s ads in Amazon
1 These trademarks also include their respective lowercase variants. Deltran
is a former Deltona subsidiary that has since been spun off but continues to
handle Deltona’s marketing.
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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.
First, Deltona alleged that NOCO engaged in “excessive . . . keyword bidding” by paying Amazon to display NOCO’s
ads when a consumer searched for “battery tender” or similar
terms. See Br. of Appellee at 10. Deltona claimed that NOCO’s
conduct “influenced purchasing decisions for large retailers, small
stores, and consumers” and that it could even have “affect[ed] consumer choices in retail stores.” Id. at 11.
Second, Deltona alleged that NOCO infringed its marks by
using the terms “battery tender” and “tender” in the text of its own
Amazon ads. For example: “More Than Just A Tender. The Ultimate Charger”; “The most advanced battery tender for any vehicle”; “More than just a Battery Tender—zero overcharge”; and
“The Winter Battery Tender with Zero Overcharge.” Pl.’s Ex.
61A, Dkt. No. 318–38; Pl.’s Ex. 61D, Dkt. No. 318–40; Pl.’s Ex.
222A, Dkt. No. 318–152; Pl.’s Ex. 61F, Dkt. No. 318–42. Deltona
sent NOCO a cease-and-desist letter each time it encountered such
an ad, and each time, NOCO took it down. Following the fourth
such letter, NOCO formally petitioned the Patent and Trademark
Office to cancel Deltona’s “Battery Tender” and “Deltran Battery
Tender” marks. Those consolidated proceedings, before the
Trademark Trial and Appeal Board, have been suspended pending
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the decision of this case. The NOCO Co. v. Deltona Transformer Corp.,
Opp. No. 91251463, Doc. 10 (T.T.A.B. Jan. 27, 2021).
Third, Deltona alleged that NOCO included the term “battery tender” in some of its chargers’ product descriptions on Amazon—namely, those promoted close to Prime Day, a once-a-year
sales event available to Amazon Prime members. By doing so, Deltona argued, NOCO “dr[o]ve traffic to [NOCO’s] products” without having to pay for keywords, which were “much more expensive” on Prime Day. Dist. Ct. Order, Sept. 29, 2023, at 8, Dkt. No.
423 (citing Trial Tr. vol. 3, May 19, 2021, at 38, Dkt. No. 343).
Finally, Deltona alleged that NOCO expressly referred to its
own products as “battery tenders” in communications with marketing firms and consumers—even “correcting” those who
thought “battery tender” referred to a particular brand. For instance:
• In 2014, NOCO President Jonathan Nook asked a digital
marketing firm to purchase a list of keywords. His list included “battery tender,” next to which he asserted “it[’]s a
generic word now.” Def.’s Ex. 19 at 1, Dkt. No. 319–3.
• 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.” Def.’s Ex. 81, Dkt. No.
319–7; Def.’s Ex. 82, Dkt. No. 319–8.
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• An email from another sales manager referred to a NOCO
charger as a battery tender, stating, “You now have pricing
for the G1100 battery tender.” Pl.’s Ex. 132, Dkt. No. 318–
90.
• In a support chat on NOCO’s website, a sales rep insisted
that the company’s products were battery tenders and that
the term “battery tender” didn’t refer specifically to a competitor’s brand: “Battery Tender is a specific brand, but ‘a
battery tender’ is a maintainer for your batteries to keep
them from losing charge while they’re connected to the battery.” Pl.’s Ex. 138, Dkt. No. 318–94.
• NOCO’s Vice President of Sales testified that he and his
team frequently referred to NOCO’s products as “battery
tenders” when communicating with customers, despite his
awareness that the term was trademarked. Trial Tr. vol. 4,
May 20, 2021, at 125, Dkt. No. 400.
Deltona insisted that NOCO’s conduct was intentional—
that NOCO knew “battery tender” was a protected mark but nevertheless tried to mislead consumers to believe that NOCO’s
chargers were battery tenders. For support, Deltona pointed to an
internal message in which, shortly after NOCO received the second cease-and-desist letter, a company employee said, “We cannot
use Battery Tender in our messaging as it will cause a legal issue,
trademark infringement.” Pl.’s Ex. 192, Dkt. No. 318–120.
Deltona also argued that NOCO deliberately chose ads that
would infringe Deltona’s marks. In support of that contention,
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Deltona pointed to a virtual brainstorming session regarding Amazon ad slogans, in which NOCO employees Nicole Brown and Erin
McCullar anticipated Deltona’s reaction to NOCO’s use of its
marks:
Brown: I picture J[onathan Nook] wanting us to
refer to Battery Tender in the messaging
just like we have for the current ad messaging.
…
Brown: The Winter Battery Tender with Zero
Overcharge.
McCullar: I like that one because it’s kind of passive aggressive [�] 2
Brown: It’s really passive aggressive [�] I envision them sending us a nasty note like,
ummm excuse me?!?!
McCullar: [�]
Pl.’s Ex. 134 at 6–7, Dkt. No. 318–92 (citation modified). As it
turned out, Brown’s proposed “Winter Battery Tender” slogan
ended up in a NOCO ad that—again—the company took down
2 The documents in the record converted the emojis to their shortcodes (e.g.,
:joy: or :rolling on the floor laughing:). For clarity, we have replaced the
shortcodes with the actual emojis to reflect the exchange as it presumably appeared between the NOCO employees.
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after Deltona sent a cease-and-desist letter. See Pl.’s Ex. 61F, Dkt.
No. 318–42.
Deltona proffered evidence that NOCO’s infringement confused consumers. For instance, the director of advertising at Deltran, a former Deltona subsidiary that was spun off but still handles
Deltona’s marketing [Doc. 341 at 44], 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.” Trial Tr. vol. 2, May 18, 2021, at 61, Dkt. No. 341. Similarly, 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.
B
Perhaps recognizing that its cease-and-desist letters weren’t
working, Deltona sued NOCO for (1) trademark infringement under § 32 of the Lanham Act, 15 U.S.C. § 1114, (2) unfair competition
and false designation of origin under § 43(a) of the Lanham Act, 15
U.S.C. § 1125(a), (3) common-law trademark infringement, and (4)
unfair competition under the Florida Deceptive and Unfair Trade
Practices Act (FDUTPA).
At trial, the jury returned a verdict for Deltona on all counts,
finding by a preponderance of the evidence that Deltona’s marks
(“Battery Tender” and “Deltran Battery Tender”) were protected
under § 32 of the Lanham Act, that NOCO’s use of those terms
caused a likelihood of confusion, that NOCO engaged in false
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advertising in violation of § 43(a) of the Lanham Act, and that Deltona was entitled to actual damages of $1.3 million. The jury also
found by clear and convincing evidence that NOCO had committed intentional misconduct or gross negligence, entitling Deltona
to punitive damages of $5.75 million. The district court thereafter
denied NOCO’s motions for judgment as a matter of law on trademark infringement, FDUTPA, and actual damages.3
The district court then held a bench trial to address Deltona’s request for equitable relief. The court ordered NOCO to
disgorge profits in the amount of $12,135,943.70 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.” Although “Tender” is not a protected mark, the court
found it necessary to enjoin NOCO from using that term, in particular, 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.” Dist. Ct. Order, Sept.
29, 2023, at 24–25, Dkt. No. 423. The district court exempted from
the injunction’s coverage both keyword purchases and comparative advertising—i.e., advertising that clearly compares alternative
3 NOCO doesn’t challenge the punitive-damages award on appeal.
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brands. 4 NOCO filed post-judgment motions challenging the injunction, which the district court denied.
On appeal, NOCO contends that it is entitled to judgment
as a matter of law (or failing that, a new trial) on the grounds (1)
that Deltona’s marks are “generic,” and thus not protected, (2) that
NOCO’s conduct didn’t constitute trademark infringement, (3)
that NOCO’s conduct didn’t amount to unfair competition under
FDUTPA, and (4) that actual damages aren’t warranted. NOCO
also contends (5) that the district court erred in instructing the jury
on false advertising because, it says, Deltona hadn’t properly
pleaded or tried that claim, and (6) that the court abused its discretion in requiring disgorgement and issuing a permanent injunction.
We’ll address each issue in turn, with the exception that we’ll save
actual damages for last.
II
We first consider whether the district court erred in denying
NOCO’s JMOL motion or abused its discretion in denying
NOCO’s motion for a new trial—both of which argued that the
4 The Federal Trade Commission defines “comparative advertising” as “advertising that compares alternative brands on objectively measurable attributes
or price, and identifies the alternative brand by name, illustration or other distinctive information.” 16 C.F.R. § 14.15(b) n.1.
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terms “battery tender” and “Deltran battery tender” are “generic,”
and thus not protectable. 5
Marks are classified by their distinctiveness along a spectrum: A mark can be (1) generic, (2) descriptive, (3) suggestive, (4)
arbitrary, or (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505
U.S. 763, 768 (1992). Importantly here, a generic term can’t be a
valid trademark. Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1183
(5th Cir. 1980). A term is generic if it “names a ‘class’ of goods or
services, rather than any particular feature or exemplification of the
class.” U.S.P.T.O. v. Booking.com, 591 U.S. 549, 556 (2020). Put another way, a generic term is “the term by which the product or
service is commonly known.” Welding Servs., Inc. v. Forman, 509
F.3d 1351, 1358 (11th Cir. 2007) (emphasis omitted). The terms
“welding services” and “liquor store” are illustrative. Id. at 1359
(holding that “welding services” referred “to the kind of services it
5 “We review the denial of a motion for judgment as a matter of law de novo,
applying the same standard as the district court.” Russell v. N. Broward Hosp.,
346 F.3d 1335, 1343 (11th Cir. 2003). JMOL is warranted when no “legally
sufficient evidentiary basis” allows a “reasonable jury to find” for the nonmoving party. Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004); see
Fed. R. Civ. P. 50(a). We view the evidence and draw inferences in the light
most favorable to the nonmoving party. U.S. S.E.C. v. Big Apple Consulting
USA, Inc., 783 F.3d 786, 813 (11th Cir. 2015).
We review the denial of a new trial for abuse of discretion. Brochu v.
City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). A new trial is warranted if “the verdict is against the clear weight of the evidence or will result
in a miscarriage of justice.” Lipphardt v. Durango Steakhouse of Brandon, Inc.,
267 F.3d 1183, 1186 (11th Cir. 2001) (citations omitted).
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and its competitors provide”); Frehling Enters. v. Int’l Select Grp., 192
F.3d 1330, 1335 (11th Cir. 1999) (liquor store). A term can be generic in relation to some things but not to others: “Ivory,” for instance, is generic in relation to elephant tusks but “arbitrary”—and
thus protectable—as applied to soap. Soweco, 617 F.2d at 1183. Significantly for our purposes, a term that isn’t inherently generic can
become generic over time. See, e.g., Haughton Elevator Co. v.
Seeberger, 85 U.S.P.Q. 80 (1950) (holding that while the term “escalator” was initially protected, it had become generic); King-Seeley
Thermos Co. v. Aladdin Indus., Inc., 321 F.2d 577 (2d Cir. 1963) (same
for “thermos”); Bayer Co. v. United Drug Co., 272 F. 505 (S.D.N.Y.
1921) (L. Hand, J.) (same for “aspirin”); Donald F. Duncan, Inc. v.
Royal Tops Mfg. Co., 343 F.2d 655 (7th Cir. 1965) (holding that, if not
generic originally, “yo-yo” had become generic); DuPont Cellophane
Co. v. Waxed Prods. Co., 85 F.2d 75 (2d Cir. 1936) (same for “cellophane”).
“Descriptive” marks are presumptively invalid; they are protectable only if they acquire “secondary meaning.” FCOA LLC v.
Foremost Title & Escrow Servs. LLC, 57 F.4th 939, 949 (11th Cir.
2023). A descriptive mark is one that “describe[s] a characteristic
or quality of an article or service.” Frehling Enters., 192 F.3d at 1335.
So, for instance, a “vision center” denotes an office or business dedicated to assessing and treating vision-related issues. FCOA, 57
F.4th at 949. The distinction between descriptive and generic
marks is subtle and “necessarily one of degree.” Soweco, 617 F.2d
at 1184.
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Unlike a generic mark, which is unprotectable as a matter of
law, a descriptive mark can qualify for trademark protection if it
acquires a “secondary meaning.” FCOA, 57 F.4th at 949. A mark
has a secondary meaning “when consumers view [it] as synonymous with the mark holder’s goods or services,” id., such that “the
primary significance of the term in the minds of the [consuming]
public is not the product but the producer,” Knights Armament Co. v.
Optical Sys. Tech., 654 F.3d 1179, 1188 (11th Cir. 2011) (quoting
Welding Servs., Inc., 509 F.3d at 1358) (emphasis added). Whether
a mark has acquired a secondary meaning depends on several factors: “(1) the length and manner of its use; (2) the nature of advertising and promotion; (3) the efforts made by the user of the mark
to promote a conscious connection in the public’s mind between
the name and the user’s product or business; and (4) the extent to
which the public actually identifies the name with the user’s product or venture.” Id. at 1189 (citation omitted). “American Airlines”
is an example of a descriptive mark that has acquired a secondary
meaning: Though it “could theoretically refer to any airline based
in North or South America,” one particular company has invested
sufficient “time and effort” that the term “now calls to mind a specific airline.” FCOA, 57 F.4th at 949.
“Suggestive,” “arbitrary,” and “fanciful” marks are the most
distinctive and are generally protectable. As the moniker indicates,
suggestive marks only “suggest characteristics of the goods and services”; understanding them “require[s] an effort of the imagination
by the consumer.” Id. So, for example, the word “‘penguin’ would
be suggestive of refrigerators” by evoking a sense of freezing
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temperatures. See id. Likewise, “City Bank . . . suggests a modern
or urban bank” and doesn’t just “describe a class of banking services
or a characteristic of banking services.” Citibank, N.A. v. Citibanc
Grp., 724 F.2d 1540, 1545 (11th Cir. 1984). Arbitrary and fanciful
marks “bear[] no logical relationship to the product[s] or service[s]”
they represent; they’re just random terms—think “Kodak” for cameras and “Xerox” for photocopiers. Welding Servs., Inc., 509 F.3d at
1357; Freedom Sav. & Loan Ass’n v. Way, 757 F.2d 1176, 1182 n.5
(11th Cir. 1985).
NOCO contends that the term “battery tender” is generic
and thus unprotectable. It first argues that “battery tender” is inherently generic—that the term has always simply referred to “a
kind of battery-charging device . . . that ‘tends’ a battery while in
disuse.” Br. of Appellant at 26. Relying on a consumer survey that
its expert conducted, NOCO alternatively asserts that, at the very
least, “battery tender” became generic by 2020. Reply Br. of Appellant at 5. Neither argument persuades us.
A
Deltona’s marks are not inherently generic. That’s so for
two reasons: (1) They are federally registered with the Patent and
Trademark Office, which clothes them with at least presumptive
validity; and (2) they are more properly characterized as (at least)
descriptive marks that have acquired secondary meaning.
For starters, federal registration constitutes “prima facie evidence of the validity of the registered mark.” 15 U.S.C. § 1057(b).
That means registration presumptively demonstrates both the
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“owner’s ownership of the mark” and his “exclusive right” to use it
in commerce as specified by the registration certificate. Matal v.
Tam, 582 U.S. 218, 226–27 (2017). Deltona has owned the federally
registered trademarks “Battery Tender” since 2008 and “Deltran
Battery Tender” since 2013—both for “battery charger[s]” “for use
in [the] marine industry, motorcycles, automotive, or in any vehicle or application using lead acid or gel batteries.” “Battery Tender” Registration Certification, Pl.’s Ex. 1, Dkt. No. 318–1; “Deltran
Battery Tender” Registration Certificate, Pl.’s Ex. 2, Dkt. No. 318–
2. The fact of registration puts a heavy thumb on the scale against
genericness.
Registration aside, the term “battery tender” is best characterized as (at least) descriptive. The term itself 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. See FCOA, 57
F.4th at 949. Supporting the descriptiveness (or suggestiveness) of
the term “battery tender” is the fact that Deltona’s co-founder
“made it up” based on his experience in World War II. Trial Tr.
vol. 1, May 17, 2021, at 201, Dkt. No. 399; id. at 185 (“We were the
first ones to develop th[e Battery Tender] name.”). So as a matter
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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,” as NOCO contends. Br. of Appellant at 26 (emphasis
added).
Because the term “battery tender” is at least descriptive, the
mark is valid so long as it has acquired a secondary meaning. A
reasonable jury could find that it has. Deltona has used the term
for at least 30 years—since the early 1990s. Initially, Deltona invested in the brand by attending annual consumer and industry
trade shows, advertising on TV and in magazines, and sponsoring
race teams and fishing boats. Deltona’s co-branding relationships
affiliated it with well-known companies like Lotus, Lexus, and
AAA. The “time and effort” Deltona put into building goodwill
and a brand reputation seem to have paid off. See FCOA, 57 F.4th
at 949. By 2014, the brand had already received significant renown
as an established brand within the industry and community, particularly in the powersports market, and people recognized Deltona’s
co-founder and CEO as “Mr. Battery Tender.” Trial Tr. vol. 1, May
17, 2021, at 196, Dkt. No. 399.
Accordingly, we hold that the term “battery tender” is not
inherently generic, but rather, is at least descriptive, and it has acquired a secondary meaning associating it with Deltona. Particularly in light of Deltona’s marks’ federally registered status, we hold
that there was sufficient evidence to support the jury’s determination that those marks are valid.
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B
There is also sufficient evidence to support the jury’s determination that the term “battery tender” hadn’t become generic by
2020. That occurs if a registered mark’s “primary significance . . . to the relevant public” becomes “the generic name” of a
good or service. 15 U.S.C. § 1064(3).
To determine whether a mark has become generic, courts
have considered “consumer surveys, dictionaries, newspapers and
other publications,” as well as the mark’s use both by the plaintiff
and by others in the trade. Royal Crown Co. v. Coca-Cola, 892 F.3d
1358, 1370 (Fed. Cir. 2018). To show that “battery tender” became
generic, NOCO proffered a consumer survey conducted by its expert in which 78% of 558 respondents reported that they believed
that “Battery Tender [was] a type of product” rather than a reference to a particular brand. Br. of Appellant at 26.
Even if NOCO’s survey was credible evidence of the term’s
genericness, it wasn’t conclusive. The jury was free to reject it—
and in fact seems to have done so. After all, Deltona had challenged
the survey’s methodology on the ground that it included people
who might simply have been “exposed” to battery tenders “from
shopping near [them]” when walking through an automotive store
or department. Trial Tr. vol. 6, May 24, 2021, at 178, Dkt. No. 402;
see Br. of Appellee at 21. The sampled population, Deltona contended, was overinclusive; that kind of exposure alone didn’t make
someone part of the “relevant public” because it didn’t mean that
he or she had purchased or were interested in purchasing battery
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tenders. To be sure, NOCO defended the survey, asserting that its
respondents represented the “relevant public”; they were “exposed” to battery tenders because they were prospective purchasers
of battery tenders. But a jury could reasonably have credited Deltona’s critique and thus rejected the results of NOCO’s survey and,
with it, NOCO’s argument that the term “battery tender” became
generic over time. 6
* * *
For the foregoing reasons, we hold that there is sufficient
evidence to support the jury’s determination that Deltona’s marks
weren’t and aren’t generic. The district court therefore didn’t err
in denying NOCO’s JMOL and new-trial motions on the issue of
genericness.
III
We next address whether the district court erred in denying
NOCO’s JMOL and new-trial motions on the issue of trademark
infringement under the Lanham Act and Florida common law. Because the analysis is the same for both claims, we will analyze them
together. See Suntree Techs. v. Ecosense Int’l, 693 F.3d 1338, 1345
(11th Cir. 2012).
6 Under our precedent, Deltona wasn’t required to produce its own survey to
rebut NOCO’s. See, e.g., Wreal, LLC v. Amazon.com, Inc., 38 F.4th 114, 140 (11th
Cir. 2022) (citing Frehling Enters., 192 F.3d at 1341 n.5); PlayNation Play Sys. v.
Velex Corp., 924 F.3d 1159, 1170 (11th Cir. 2019).
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To state a trademark-infringement claim, “a plaintiff must
demonstrate (1) that it owns a valid mark with priority, and (2) that
the defendant’s mark is likely to cause consumer confusion with
the plaintiff’s mark.” FCOA, 57 F.4th at 946; see also 15 U.S.C.
§ 1114(1). As just explained, Deltona presented sufficient evidence
to establish the marks’ validity, thereby satisfying the first element.
The second element entails two steps. “At step one, the
court considers several factors which can provide circumstantial
evidence of likelihood of confusion.” Id. at 947. These include (1)
the strength of the infringed mark, (2) the similarity of the infringed
and infringing marks, (3) the similarity of the goods and services
the marks represent, (4) the similarity of the parties’ trade channels
and customers, (5) the similarity of the parties’ advertising media,
(6) the infringer’s intent to misappropriate the mark owner’s goodwill, and (7) the existence and extent of actual confusion among the
consuming public. Id. (citing Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l
Univ., Inc. (FIU), 830 F.3d 1242, 1255 (11th Cir. 2016)). The weight
given to each factor “varies with the circumstances of the case.”
Suntree Techs., 693 F.3d at 1346. “At step two, the court weighs
each of the relevant circumstantial facts—independently and then
together—to determine whether . . . likelihood of confusion[] can
reasonably be inferred.” FCOA, 57 F.4th at 947.
Deltona contends that NOCO infringed its marks by engaging in a “broad[], systematic attack on the Battery Tender brand
across multiple channels.” Br. of Appellee at 27. In particular, Deltona alleges that NOCO engaged in the following conduct: (1) It
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“excessively” bid on keywords including the term “battery tender”
and its variants to boost its ads’ placement in Amazon search results; (2) it used the term “battery tender” in the text of its Amazon
ads; (3) it used “battery tender” in its product descriptions on Amazon; and (4) it held out its own chargers as “battery tenders” in
communications with marketing firms and consumers. We’ll consider NOCO’s contentions in turn.
A
Deltona claims that NOCO engaged in “excessive . . . keyword bidding” when it aggressively purchased Deltona’s marks as
keywords so that consumers searching for “battery tenders” on
Amazon would see NOCO ads. Br. of Appellee at 10. Whether
keyword bidding can constitute trademark infringement is a question of first impression in this Court. The district court thought
that it might. See Dist. Ct. Order, Sept. 29, 2023, at 22, Dkt. No.
423 (“It is not clear under Eleventh Circuit law that merely purchasing keywords—without some other evidence of consumer confusion—is sufficient to constitute trademark infringement.” (emphasis added)). We now hold, to the contrary, that it doesn’t.
Keyword bidding doesn’t constitute trademark infringement for a simple reason: It’s not “likely to cause consumer confusion with the plaintiff’s mark.” FCOA, 57 F.4th at 946. And it’s unlikely to cause consumer confusion with the plaintiff’s mark for an
equally straightforward reason: The use of the plaintiff’s mark for
keyword-bidding purposes occurs “behind the scenes,” so to speak.
Consumers don’t—indeed, can’t—see the plaintiff’s mark—all
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that’s visible here is a NOCO ad. We agree with the Ninth Circuit
that, in a case like this, likelihood of confusion “turn[s] on what the
consumer s[ees] on the screen and reasonably believe[s], given the
context.” Network Automation v. Advanced Sys. Concepts, 638 F.3d
1137, 1153 (9th Cir. 2011). A consumer who sees a NOCOsponsored ad, whether or not driven by keyword bidding, may well
recognize the promoted NOCO product as an alternative to consider, but he’s unlikely for that reason alone to mistake it for Deltona’s own offering. Accordingly, confusion here depends on
whether Deltona’s mark is visible in NOCO’s ad, not whether an
ad that does not display or otherwise reference Deltona’s mark
might have been (invisibly) triggered by the mark’s behind-thescenes use as a keyword.
To be sure, ads driven by keyword bidding might distract
consumers, but they’re not likely to confuse them. NOCO’s bidding
practices may well result in its own ads showing up alongside Deltona’s in search results for “battery tenders.” (After all, that’s why
NOCO paid for the keywords.) But so long as NOCO’s ads don’t
hold that company out as selling “battery tenders,” consumers
aren’t likely to be confused—just potentially overwhelmed by the
presence of alternative products. The situation the consumer
would face is akin to the one he would confront if he walked into
a corner store looking for Coke and encountered Pepsi next to it
on the shelf. See Eric Goldman, Brand Spillovers, 22 Harv. J.L. &
Tech. 381, 410 (2009). Or if he asked a salesperson at an electronics
store about a Dell laptop and received a question in response: “Dell
laptops are great, but have you looked at the new Lenovo?” 2
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McCarthy on Trademarks & Unfair Competition § 25A:8 (5th ed.)
(cleaned up). In all these cases, the consumer is distracted, but not
confused about what the alternative represents—“information
about competing brands among which [she] can select.” Goldman,
supra, at 410. And that’s true whether the marketplace is a brickand-mortar store or an online platform. See id.
In holding that keyword bidding can’t constitute trademark
infringement, we join the unanimous consensus of our sister circuits. See, e.g., 1-800 Contacts, Inc. v. JAND, Inc., 119 F.4th 234, 239
(2d Cir. 2024) (holding that “the mere act of purchasing a competitor’s trademarks in the context of keyword search advertising does
not constitute trademark infringement”); 1-800 Contacts, Inc. v.
Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (holding that the
use of keywords, “divorced from the text of the resulting ads, could
not result in a likelihood of confusion”); Lerner & Rowe PC v. Brown
Engstrand & Shely LLC, 119 F.4th 711, 719 (9th Cir. 2024) (observing
that “in the keyword advertising context,” “the owner of the mark
must demonstrate likely confusion, not mere diversion”); Jim S. Adler, P.C. v. McNeil Consultants, L.L.C., 10 F.4th 422, 428 (5th Cir.
2021) (“[I]n the context of internet searches and search-engine advertising in particular, the critical issue is whether this is consumer
confusion. Distraction is insufficient.”).
Put simply, NOCO’s keyword bidding on Deltona’s marks
doesn’t constitute infringement because consumers don’t see it. Instead, “what consumers encountered in the marketplace” were the
resulting ads, Lerner & Rowe, 119 F.4th at 726 (citation modified),
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which weren’t unlawful, at least so long as they didn’t use Deltona’s marks—i.e., hold themselves out as selling Deltona’s products. Accordingly, to the extent that the damages award in this case
is predicated on NOCO’s keyword-bidding practices—the record
includes 37 NOCO ads that were displayed as a result of that company’s keyword purchases but didn’t themselves display Deltona’s
marks—it must be reduced.
B
Second, and more conventionally, Deltona contends that
NOCO infringed its marks by using the term “battery tender” in the
text of NOCO’s own Amazon ads. For instance, NOCO’s ads said
things like “More Than Just A Tender. The Ultimate Charger,”
“The most advanced battery tender for any vehicle,” “More than
just a Battery Tender – zero overcharge,” and “The Winter Battery
Tender with Zero Overcharge.” Pl.’s Ex. 61A, Dkt. No. 318–38;
Pl.’s Ex. 61D, Dkt. No. 318–40; Pl.’s Ex. 222A, Dkt. No. 318–152;
Pl.’s Ex. 61F, Dkt. No. 318–42.
This is wheelhouse trademark infringement; NOCO’s conduct was likely to mislead consumers into thinking that it sold “battery tenders.” NOCO insists that its ads weren’t confusing because
Amazon marked them as “sponsored” and customers would therefore recognize them as ads. Even so, the sponsored ads’ content
effectively stated that NOCO sold battery tenders, which it
doesn’t—only Deltona does. (Recall that we’ve already held that
there is sufficient evidence to support the jury’s determination that
Deltona’s “battery tender” mark is valid. See supra at 19.) NOCO’s
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ads were likely to mislead consumers into thinking that its products
were battery tenders when, in fact, they weren’t.
Further evidence indicates that NOCO’s use of Deltona’s
marks in its ads’ text was knowing and intentional. Amid the flurry
of cease-and-desist letters, NOCO employees acknowledged that
the company “c[ould] not use Battery Tender in [its] messaging as
it will cause a legal issue, trademark infringement.” Pl.’s Ex. 192,
Dkt. No. 318–120. And while brainstorming the slogan, “The Winter Battery Tender with Zero Overcharge,” NOCO employees
openly discussed their company’s president’s desire to “refer to Battery Tender in the messaging.” Pl.’s Ex. 134 at 6–7, Dkt. No. 318–
92 (“I picture J[onathan Nook] wanting us to refer to Battery Tender in the messaging just like we have for the current ad messaging.” (citation modified)). And indeed, the employees greenlighted the slogan precisely because it used Deltona’s mark. Id. (“I
like that one because it’s kind of passive aggressive [�]. ”). A reasonable jury could find that the evidence reflects NOCO’s intent to
“misappropriate [Deltona’s] good will.” FCOA, 57 F.4th at 947.
C
Third, Deltona alleges that NOCO used the term “battery
tender” in its chargers’ product descriptions on Amazon leading up
to Prime Day. To be clear, using the term in product descriptions
is different from using it in the ads’ main text. Product descriptions
are “below the line,” so to speak, and in smaller print—they are
meant to inform a diligent customer rather than grab his attention.
As a result, consumers are probably less likely to focus on them in
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the way they do the ads. Even so, the district court found that by
using the term “battery tender” in its product descriptions, NOCO
sought to “drive traffic to [its] products”—namely, by increasing
the likelihood that someone searching the internet for a “battery
tender” might land on a NOCO offering—even while saving the
company money that it would otherwise spend purchasing keywords, which are “much more expensive” during Prime Day season. Dist. Ct. Order, Sept. 29, 2023, at 8, Dkt. No. 423. NOCO’s
use of “battery tender” in its product descriptions, the district court
concluded, could be seen as misdirecting consumers’ trust in Deltona’s brand to NOCO’s products by passing off its own chargers
as battery tenders—and thereby misappropriating goodwill that
Deltona had established through its time and effort. Cf. Trial Tr.
vol. 3, May 19, 2021, at 162, Dkt. No. 343 (“[NOCO was] using [the
Deltona] brand to be able to sell their product.”). Because we view
the record in the light most favorable to the nonmoving party on
appeal from a denial of a JMOL motion, see supra at 12 n.5, we accept the district court’s characterization of the evidence for purposes of our analysis. We think it clear that a reasonable jury could
find that the product descriptions were part of an effort to misappropriate Deltona’s goodwill and confuse consumers. See FCOA,
57 F.4th at 947.
NOCO contends that it didn’t commit trademark infringement because Deltona offered no evidence that “any consumer
would—or did—scroll down the page to see ‘battery tender’ in the
product description and become confused about the source of the
product” on offer. Br. of Appellant at 39. In so doing, NOCO
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deploys a variant of the argument that it (as it turns out, successfully) made regarding keyword bidding. In particular, NOCO says,
because Deltona didn’t prove that any consumer was likely to actually read the term “battery tender” in NOCO’s product descriptions, it couldn’t show that the product descriptions were the basis
of any consumer confusion.
But using the term “battery tender” in product descriptions
is different from purchasing it as a keyword in at least two fundamental respects. First, a product description is (our term) “on the
page.” Even if less conspicuous or prominent than the ad’s main
text, it isn’t entirely invisible to the consumer’s eye in the way that
a behind-the-scenes keyword is. The fact is that a webpage featuring one of NOCO’s chargers said, in so many words, that it was a
“battery tender.” And second, whereas bidding on the term “battery tender” as a keyword would trigger a “sponsored” ad that
would alert a consumer that the displayed product wasn’t Deltona’s, using that term in a product description wouldn’t. See Trial
Tr. vol. 3, May 19, 2021, at 45, 70, Dkt. No. 343.
The bottom line: Even if consumers didn’t actually read
NOCO’s product descriptions, NOCO impermissibly held itself out
in those descriptions as a seller of battery tenders, rather than a provider of alternatives to battery tenders, as it did, for instance, when
using a keyword-bidding strategy to drive traffic to its own products. The 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
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without alerting them in any way—through a “sponsored” tag or
otherwise—that they weren’t really looking at battery tenders.
D
Finally, Deltona contends that NOCO held out its products
as “battery tenders” in communications with marketing firms and
consumers. The evidence supports the conclusion that, from the
top down, NOCO actively tried to sow confusion about what a battery tender is. NOCO’s president, Nook, specifically told the company’s marketing firm that “battery tender” had become “a generic
word.” Def.’s Ex. 19 at 1, Dkt. No. 319–3. In the same vein, a sales
manager, advised by Nook, emailed a prospective customer that
the term “[b]attery [t]ender . . . usually refer[s] to the function . . . than the actual brand.” Def.’s Ex. 81, Dkt. No. 319–7;
Def.’s Ex. 82, Dkt. No. 319–8. So too, when asked whether “Battery Tender” was a different brand, a NOCO support-chat employee insisted that a “battery tender” was fundamentally a product: “Battery Tender is a specific brand, but ‘a battery tender’ is a
maintainer for your batteries . . . .” Pl.’s Ex. 138, Dkt. No. 318–94.
Another sales manager referred to a specific NOCO product as a
type of “battery tender.” Pl.’s Ex. 132, Dkt. No. 318–90. And indeed, NOCO’s Vice President of Sales admitted that he and his
team frequently referred to NOCO’s products as “battery tenders”
in communications with customers despite knowing the term was
trademarked. Trial Tr. vol. 4, May 20, 2021, at 125, Dkt. No. 400.
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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.
* * *
To briefly recap, the factors that bear on likelihood of confusion are (1) the strength of the infringed mark, (2) the similarity
of the infringed and infringing marks, (3) the similarity of the goods
and services the marks represent, (4) the similarity of the parties’
trade channels and customers, (5) the similarity of the parties’ advertising media, (6) the infringer’s intent to misappropriate the infringed party’s goodwill, and (7) the existence and extent of actual
confusion among the consuming public. FCOA, 57 F.4th at 947.
A reasonable jury could have found that, with one arguable
exception, the FCOA factors support the conclusion that NOCO’s
conduct was likely to cause confusion. With respect to Factor (1),
the strength of Deltona’s marks, it’s true that if the term “battery
tender” is merely descriptive, then it’s less distinctive than marks
that are suggestive, arbitrary, or fanciful. But the presence of each
of the remaining factors substantially increased the likelihood of
consumer confusion. As for Factor (2), the infringed and infringing
marks are the same; as we’ve explained, NOCO used Deltona’s
protectable mark in the text of NOCO’s Amazon ads, in Amazon
product descriptions, and in communications with consumers and
marketing firms. Factor (3): Deltona’s and NOCO’s products are
similar—both sell battery-maintaining chargers for use in vehicles.
Factors (4) and (5): The companies’ trade channels, customers, and
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30 Opinion of the Court 24-13590
advertising media are also similar—both rely heavily on Amazon
to sell and advertise their products to people in the market for battery-maintaining chargers. Factor (6): NOCO intended to misappropriate Deltona’s goodwill; NOCO deliberately used “battery
tender” in the text of its ads and in Amazon product descriptions,
and actively misinformed customers that “battery tender” was generic. And Factor (7): Actual confusion is apparent from (a) a retailer mistakenly sending an inquiry about Deltona’s products to
NOCO, (b) the experience of a Deltona customer who became
puzzled when talking to a NOCO employee who referred to
NOCO’s products as “battery tenders,” and (c) a virtual conversation on NOCO’s website in which a sales rep told a putative customer that the term “battery tender” didn’t refer specifically to a
particular brand but, rather, was a general term that included
NOCO’s products.
Putting it all together, a jury could weigh the FCOA factors
and reasonably conclude that NOCO’s conduct—keyword bidding
aside—was likely to cause consumer confusion. See FCOA, 57 F.4th
at 947. Accordingly, we hold that the evidence is sufficient to support the jury’s determination that NOCO infringed Deltona’s
marks. The district court therefore did not err in denying NOCO’s
JMOL and new-trial motions on the issue of trademark infringement.
IV
We next consider whether the district court erred in denying
NOCO’s JMOL and new-trial motions challenging the jury’s
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determination that the company violated the Florida Deceptive
and Unfair Trade Practices Act.
FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat.
§ 501.204(1). FDUTPA violations can be based on “[a]ny law, statute, rule, regulation, or ordinance which proscribes unfair methods
of competition”—including, as relevant here, the Lanham Act. Id.
§ 501.203(3)(c). Therefore, NOCO’s liability under § 43(a) of the
Lanham Act, which prohibits unfair competition and false designation of origin, 15 U.S.C. § 1125(a), likewise gives rise to a FDUTPA
violation. See Suntree Techs., 693 F.3d at 1345 (“The legal standards
we apply to [the FDUTPA] claim are the same as those we have
applied under section 43(a) of the Lanham Act.” (citation modified)).
But the question of remedies remains. While declaratory
and injunctive relief are available to “anyone aggrieved” by a
FDUTPA violation, Fla. Stat. § 501.211(1), 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,” id. § 501.211(2).
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.” Stuart Roofing, Inc. v. Thomas, 372 So.
3d 298, 300 (Fla. Dist. Ct. App. 2023) (emphasis added).
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To make its damages case, Deltona points to “harm to its
reputation or goodwill” that it says resulted from NOCO’s infringing conduct and consumer confusion. Br. of Appellant at 23. But
those sorts of injuries give rise not to actual damages but rather to
consequential damages, which are “not compensable under section
501.211(2).” Stewart Agency v. Arrigo Enters., 266 So. 3d 207, 214 (Fla.
Dist. Ct. App. 2019); City First Mortg. Corp. v. Barton, 988 So. 2d 82,
86 (Fla. Dist. Ct. App. 2008) (same). Unlike actual damages, consequential damages are indirect losses arising from a defendant’s allegedly illegal conduct. Deltona’s theory is that consumer confusion harms its reputation and goodwill, which in turn causes consumers to buy NOCO’s chargers rather than its own battery tenders. But Deltona hasn’t alleged that consumer confusion directly
caused it to lose battery-tender sales. Accordingly, Deltona can’t
recoup damages for NOCO’s FDUTPA violation. Cf., e.g., Wyndham Vacation Resorts, Inc. v. Timeshares Direct, Inc., 123 So. 3d 1149,
1152 (Fla. Dist. Ct. App. 2012) (refusing damages but granting injunctive relief under FDUTPA where a competitor’s deceptive misrepresentations could create consumer confusion and loss of goodwill); Pepsico, Inc. v. Distribuidora La Matagalpa, Inc., 510 F. Supp. 2d
1110, 1116 (S.D. Fla. 2007) (same for trademark infringement).
Even though Deltona proved a FDUTPA violation, it didn’t
seek actual damages. Accordingly, it is entitled to injunctive relief
but not to monetary relief.
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V
We must also decide whether the district court erred when
it instructed the jury on false advertising under the Lanham Act. 7
Section 43(a) of the Lanham Act provides “two distinct bases
of liability”: (1) unfair competition or false designation of origin under § 43(a)(1)(A); and (2) false advertising under § 43(a)(1)(B).
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 122
(2014); 15 U.S.C. § 1125(a)(1)(A) (unfair competition and false designation of origin); id. § 1125(a)(1)(B) (false advertising). Section
43(a)(1)(A) effectively codifies a slightly broader version of trademark infringement than § 32, prohibiting a term’s use in commerce—regardless of whether it’s registered as a mark—if it’s
“likely to cause confusion” or “deceive” as to the “origin, sponsorship, or approval of [one’s] goods.” Id. § 1125(a)(1)(A). Section
43(a)(1)(B), by contrast, prohibits false advertising, or misrepresentations as to the “nature, characteristics, . . . or geographic origin”
of goods or services. Id. § 1125(a)(1)(B).
To evaluate the propriety of the district court’s jury instruction on false advertising, we first examine the complaint to determine whether Deltona pleaded a false-advertising claim. If not, we
must then assess the trial proceedings to determine whether
NOCO consented to trial of a false-advertising claim.
7 We “review jury instructions de novo to determine whether they misstate
the law or mislead the jury.” Teel v. Lozada, 99 F.4th 1273, 1279 (11th Cir.
2024).
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Deltona’s complaint alleged unfair competition and false
designation of origin under the Lanham Act. See Compl. ¶¶ 65–71.
And the entirety of the complaint’s relevant section made allegations to that effect. For starters, that section was titled “Federal
False Designation of Origin and Unfair Competition”—which for
all intents and purposes tracks the language of § 43(a)(1)(A). Id.
And beyond the label, that portion of the complaint made the following substantive allegations:
• NOCO’s use of Deltona’s marks “is likely to deceive consumers as to the origin, source, sponsorship, or affiliation of
[NOCO’s] products, and is likely to cause consumers to believe, contrary to fact, that [NOCO’s] products are sold, authorized, endorsed, or sponsored by [Deltona], or that
[NOCO] is in some way affiliated with or sponsored by [Deltona].” Id. ¶ 66.
• NOCO’s use of Deltona’s marks “constitutes use of a false
designation of origin and misleading description and representation of fact.” Id. ¶ 67.
• NOCO’s “conduct is willful and is intended to and is likely
to cause confusion, mistake, or deception as to the affiliation, connection, or association of [NOCO] with [Deltona].”
Id. ¶ 68.
• NOCO’s “conduct constitutes unfair competition and false
designation of origin in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).” Id. ¶ 69.
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The district court thought the phrase “misleading description and representation of fact,” id. ¶ 67, when read in conjunction
with the complaint’s “numerous allegations involving advertisements” and its generic citation to § 43(a)—rather than § 43(a)(1)(A),
in particular—warranted a separate jury instruction on false advertising under § 43(a)(1)(B). See Trial Tr. vol. 6, May 24, 2021, at 9,
Dkt. No. 402.
We disagree. We hold that Deltona failed to adequately
plead false advertising. Given the context—not just the count’s label but also the surrounding allegations—the complaint’s assertion
that NOCO’s use of Deltona’s marks constituted “misleading description and representation of fact” is more properly understood
as a reference to the unfair competition and false designation of
origin prohibited by § 43(a)(1)(A)—i.e., as a contention that
NOCO’s conduct was likely “to deceive . . . as to the origin, sponsorship, or approval of [its] goods.” 15 U.S.C. § 1125(a)(1)(A). And
Deltona’s generic reference to § 43(a), rather than subparagraph
(a)(1)(A), doesn’t move the needle—even if a little imprecise, Deltona didn’t by that citation signify an intent to establish a separate
“bas[i]s of liability.” Lexmark Int’l, Inc., 572 U.S. at 122. We therefore disagree with the district court’s conclusion that Deltona’s
complaint “undoubtedly” put NOCO on “notice of [a] false advertisement claim.” Trial Tr. vol. 6, May 24, 2021, at 9, Dkt. No. 402.
It’s true, as Deltona asserts, that an issue not raised in the
complaint can be treated as having been presented—and thus, for
our purposes, the proper subject of a jury instruction—if it is “tried
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by the parties’ express or implied consent.” Fed. R. Civ. P. 15(b)(2).
But NOCO neither expressly nor impliedly consented to trying a
false-advertising claim. Implied consent exists if “the parties recognized that an issue not presented by the pleadings entered the case
at trial.” Doe #6 v. Miami-Dade Cnty., 974 F.3d 1333, 1339 (11th Cir.
2020). Accordingly, consent can be inferred if evidence relevant to
an unpleaded issue is introduced without objection. Wesco Mfg. v.
Tropical Attractions of Palm Beach, Inc., 833 F.2d 1484, 1487 (11th Cir.
1987). But the “introduction of evidence arguably relevant to
pleaded issues cannot serve to give a party fair notice that new issues
are entering the case.” Id. (emphasis added). While Deltona offered evidence that could have supported an unpleaded false-advertising claim—such as NOCO using “battery tender” in the text of
its Amazon ads and thus misrepresenting its own products as Deltona’s—that evidence wasn’t specific to false advertising; rather, it
could just as well have supported the properly pleaded unfair-competition claim. NOCO therefore didn’t impliedly consent to trial
of a false-advertising claim. And because the false-advertising claim
wasn’t properly before the jury, the district court erred in giving a
jury instruction on that theory.
Instruction-based errors are subject to reversal when, “put
in context,” there is a “substantial and ineradicable doubt” whether
the jury was properly guided. Christopher v. Cutter Lab’ys, 53 F.3d
1184, 1191 (11th Cir. 1995); Luxottica Grp. S.p.A. v. Airport Mini Mall,
LLC, 932 F.3d 1303, 1311 (11th Cir. 2019). The false-advertising instruction here gives rise to such a doubt; it directed jurors to
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adjudicate a claim that was neither pleaded nor properly tried. We
thus reverse the district court’s judgment on false advertising.
VI
Next up, equitable remedies—whether the district court
abused its discretion in requiring disgorgement of NOCO’s profits
and issuing a permanent injunction. 8
A
Disgorgement is appropriate when “(1) the defendant’s conduct was willful and deliberate, (2) the defendant was unjustly enriched, or (3) it is necessary to deter future conduct.” PlayNation
Play Sys., 924 F.3d at 1170. We needn’t proceed beyond the first
trigger because NOCO’s own internal communications confirm
that its conduct was willful and deliberate. Again, despite acknowledging that it “c[ould not] use Battery Tender in [its] messaging,”
NOCO continued to do so in its Amazon ads, Amazon product descriptions, and sales practices. And NOCO employees believed
that the company’s president “want[ed] [them] to refer to Battery
Tender in the messaging” and specifically chose one sales slogan
because it used Deltona’s marks. The district court’s finding that
the “evidence of willful infringement is abundant” was not clearly
erroneous. Disgorgement is appropriate.
8 We review the district court’s decision in both respects for abuse of discretion, CNA Fin. Corp. v. Brown, 162 F.3d 1334, 1337 (11th Cir. 1998), and any
subsidiary factual determinations for clear error, Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985).
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NOCO separately challenges the amount of the district
court’s disgorgement award. The court calculated the award by
estimating NOCO’s battery-charger profits during the period in
which the jury concluded it had engaged in infringement, from December 2014 to March 2020. Because it didn’t have precise
monthly numbers, the court (1) averaged monthly sales in 2014 to
derive an estimate for December 2014, (2) added up sales for 2015,
2016, 2017, 2018, and 2019, and then (3) divided sales for the first
six months of 2020 to derive an estimate for January to March of
that year. Finally, to the estimated sales numbers, the court applied
NOCO’s profit margin—as confirmed by the company’s president—to reach the final amount of $12,135,943.70.
NOCO contends (1) that any disgorgement should be limited to profits directly traceable to NOCO’s use of Deltona’s marks
on Amazon, (2) that Deltona had unclean hands because it also engaged in keyword bidding, and (3) that principles of equity preclude
disgorgement because Deltona had stated that the matter was
“closed” following its first cease-and-desist letter. None of NOCO’s
arguments is availing.
First, NOCO’s illegal conduct extended beyond its Amazon
buys—it also included actively communicating to consumers and
external partners that Deltona’s marks were generic. Second, and
relatedly, that conduct went beyond keyword bidding—which, for
reasons explained, doesn’t constitute trademark infringement—to
include the use of Deltona’s marks in the text of its ads and product
descriptions, and, again, misleading communications with
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consumers. Finally, equitable estoppel doesn’t apply here because
Deltona had “closed” the matter only because it believed that
NOCO had stopped infringing its marks. When NOCO continued
to infringe, Deltona followed up with more letters and, eventually,
this lawsuit. The district court thus acted within its discretion in
ordering NOCO to disgorge $12,135,943.70.
B
The district court also broadly and permanently enjoined
NOCO from “selling, marketing, advertising, promoting, or authorizing any third party to sell, market, advertise, or promote [its]
products, including without limitation, its battery chargers, jump
starters, and battery-related products, with or using the terms ‘Battery Tender,’ ‘Deltran Battery Tender,’ ‘Deltran,’ or ‘Tender’”—in
any font, any case (upper or lower), and any number (singular or
plural). Dist. Ct. Order, Sept. 29, 2023, at 26–27, Dkt. No. 423.
NOCO challenges both the injunction’s imposition and scope.
In the trademark context, courts have the authority “to
grant injunctions, according to the principles of equity and upon
such terms as the court may deem reasonable, to prevent the violation of any right of the registrant of a mark.” 15 U.S.C. § 1116(a).
To obtain an injunction, a plaintiff must show (1) that it is suffering
irreparable injury, (2) that legal remedies like monetary damages
are inadequate, (3) that the balance of hardships warrant equitable
relief, and (4) that the public interest wouldn’t be disserved by the
issuance of an injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006).
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In contesting the issuance of the injunction, NOCO contends that Deltona hasn’t satisfied the irreparable-injury element
because it isn’t suffering any ongoing harm. We disagree. As an
initial matter, we’ve previously held that “infringement by its nature causes irreparable harm.” Tally-Ho, Inc. v. Coast Cmty. Coll.
Dist., 889 F.2d 1018, 1029 (11th Cir. 1989). And even though
NOCO seems to have ceased its misconduct, the record shows that
it has, after brief interludes, repeatedly returned to infringing Deltona’s marks. The district court found that that NOCO’s “[v]oluntary cessation” didn’t alleviate the risk of “further infringement in
the future.” Dist. Ct. Order, Sept. 29, 2023, at 19, Dkt. No. 423.
That finding is not clearly erroneous.
NOCO separately objects to the injunction’s scope. In particular, NOCO asserts that because the term “tender” isn’t trademarked, its use can’t constitute trademark infringement—and
therefore, the argument goes, can’t properly be enjoined. NOCO’s
argument isn’t without some force. After all, courts may not issue
overbroad injunctions: Even if “this field of the law does not yield
an easily-separable crop of guidelines,” an injunction can’t “lop[]
off a considerable amount of wheat with its chaff.” B.H. Bunn Co.
v. AAA Replacement Parts Co., 451 F.2d 1254, 1269 (5th Cir. 1971).
We have held, however, that an injunction “can be therapeutic as
well as protective.” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1548
(11th Cir. 1986). “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.” Id.
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The injunction here prohibits NOCO from using the word
“tender” in the selling, marketing, advertising, or promotion of its
products “without limitation.” Dist. Ct. Order, Sept. 29, 2023, at
26–27, Dkt. No. 423. That’s pretty broad. At the same time,
though, omitting “tender” from the injunction would have left
NOCO a loophole. Recall, for instance, that one of the challenged
Amazon ads reads, “More Than Just A Tender. The Ultimate
Charger.” Though it didn’t use the term “battery tender” expressly, there’s no question that its slogan referred to battery tenders, and that it was just as likely to confuse consumers as slogans
that were more explicit.
If the district court hadn’t enjoined the use of the word “tender,” NOCO could have continued running the “More Than Just A
Tender” ad and others like it—and thereby confused consumers in
the very manner that trademark law is designed to prevent. In
crafting its injunction, the district court recognized and addressed
precisely that possibility: “Defendant has made abundantly clear
by its previous behavior that if it is given any loophole, it will use
it to infringe. Thus, [the term ‘tender’] will be included in the permanent injunction.” Id. at 25. We hold that the district court acted
within its discretion in crafting the permanent injunction as it did.
VII
One final issue: Did the district court err in denying
NOCO’s JMOL and new-trial motions challenging the jury’s decision awarding Deltona $1.3 million in actual damages?
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Damages for trademark infringement under the Lanham
Act may include “any damages sustained by the plaintiff.” Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1241 (11th Cir. 2008); see
also 15 U.S.C. § 1117. The category of “damages sustained by the
plaintiff” includes “all elements of injury to the business of the
trademark owner proximately resulting from the infringer’s
wrongful acts,” such as harm to the business’s reputation or goodwill. Aronowitz, 513 F.3d at 1241. Here, the $1.3 million award was
for damage to Deltona’s reputation and goodwill. See Dist. Ct. Order, Mar. 30, 2022, at 7, Dkt. No. 410.
NOCO first asserts that Deltona wasn’t entitled to any damages—because, it says, even though Deltona technically owns the
marks, it licenses them to Deltran. Deltran is a former subsidiary
of Deltona that has since split off into a separate company, and it
handles Deltona’s distribution, operations, and advertising. Because, NOCO argues, Deltona is just an “intellectual-property
holding company having one captive customer”—i.e., Deltran—
Deltona doesn’t have any relevant reputation that could have been
harmed. Br. of Appellant at 48. Respectfully, that doesn’t follow.
Harm to the reputation and goodwill of marks that Deltona owns
surely also harms the reputation and goodwill of Deltona itself.
The reason, we think, is that Deltona’s value is closely tied to the
value of its assets, which include its intellectual property.
NOCO is on firmer footing in challenging the amount of the
damages award. On its verdict form, the jury awarded a lump sum
of $1.3 million without parsing the damages claim by claim. So far
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as we can tell, the $1.3 million covers Deltona’s claims for (1) trademark infringement under § 32 of the Lanham Act, (2) trademark
infringement under Florida common law, (3) unfair competition
and false designation of origin under § 43(a)(1)(A) of the Lanham
Act, (4) violation of FDUTPA, and (5) false advertising under
§ 43(a)(1)(B) of the Lanham Act.
In this opinion, we have held (1) that keyword bidding
doesn’t constitute trademark infringement, (2) that Deltona’s damages award under FDUTPA cannot stand, and (3) that the district
court erred in instructing the jury on Deltona’s false-advertising
claim, which was neither properly pleaded nor tried. Because we
can’t determine the extent to which the $1.3 million damages
award reflects liability for any of those claims or theories, we vacate
the damages award and remand for a new trial on damages.
VIII
To recap: We hold that a reasonable jury could find that
Deltona’s marks are protected, that NOCO engaged in trademark
infringement, and (separately) that NOCO violated FDUTPA. Accordingly, we AFFIRM the district court’s denial of NOCO’s JMOL
and new-trial motions challenging the jury’s verdicts on those issues. We also AFFIRM the district court’s disgorgement order and
its permanent injunction. We hold that the district court erred in
instructing the jury on NOCO’s false-advertising claim and
REVERSE the jury’s verdict on that issue. Finally, we VACATE
and REMAND for a new trial on damages consistent with this opinion—in particular, our holdings that keyword bidding doesn’t
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constitute trademark infringement, that Deltona’s FDUTPA damages award cannot stand, and that Deltona’s false-advertising claim
wasn’t properly pleaded or tried.