The US Court of Appeals for the Eleventh Circuit has ruled that purchasing a competitor’s trademark as an online advertising keyword does not on its own constitute trademark infringement.
The court found that because keyword bidding occurs entirely behind the scenes, consumers never see the purchased keyword and therefore cannot be confused by it.
The ruling came in the case of Deltona Transformer Corporation v. The NOCO Company, decided on 4 August 2026 by Judges Lagoda, Kidd, and Newsom.
Deltona Transformer Corporation manufactures vehicle battery chargers and owns federally registered trademarks for BATTERY TENDER and DELTRAN BATTERY TENDER.
One of Deltona’s founders coined the term “battery tender,” drawing on the maritime use of “tender” for a vessel that services or supplies another vessel.
The NOCO Company makes similar battery chargers and beginning in 2014 promoted its products using “battery tender” through keyword bidding, advertising copy, product descriptions, and customer communications.
Deltona sued for federal and state trademark infringement and unfair competition, and a jury found in Deltona’s favour, awarding damages alongside a disgorgement order and permanent injunction.
The Eleventh Circuit rejected NOCO’s argument that “battery tender” was a generic, unprotectable term, noting that federal registration provided prima facie evidence of validity and that the mark was at least descriptive.
The court further concluded that a reasonable jury could find secondary meaning given Deltona’s decades of use, advertising, promotion, and industry recognition.
On the question of keyword bidding, the court determined that likelihood of confusion depends on what the consumer sees in an advertisement, not the invisible mechanism that caused the advertisement to appear in the first place.
However, the court upheld the jury’s infringement finding based on NOCO’s visible use of Deltona’s marks in advertisement text, product descriptions, and communications with customers and marketing firms.
The court found sufficient evidence that NOCO’s use of “battery tender” in advertising copy was likely to mislead consumers into believing NOCO sold Deltona’s branded products, and noted that sponsored labels did not eliminate the potential confusion.
The Eleventh Circuit also affirmed that NOCO’s Lanham Act liability gave rise to a Florida Deceptive and Unfair Trade Practices Act violation, though Deltona was limited to injunctive relief under that claim rather than monetary damages.
The court reversed the false advertising judgment, finding that Deltona had failed to adequately plead that theory and that NOCO had not consented to trying an unpleaded claim at trial.
The Eleventh Circuit stressed that Lanham Act Section 43(a) provides two distinct bases of liability and that Deltona’s complaint focused on false designation of origin rather than false advertising, making the jury instruction on that point improper.
The disgorgement order was nonetheless affirmed, with the court finding NOCO’s conduct willful and deliberate based on its own internal communications.
The broad injunction prohibiting NOCO from using the word “tender” was also upheld, because NOCO had previously resumed infringing behaviour after brief cessations, leading the court to conclude it would exploit any loophole available.
Because the lump-sum jury damages award may have included compensation for keyword bidding, false advertising, or FDUTPA monetary relief, the Eleventh Circuit vacated that award and remanded the case for a new damages trial.