Deltona Transformer Corporation <strong>v</strong>. The Noco Company

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USCA11 Case: 24-13590      Document: 76-1       Date Filed: 08/04/2026      Page: 1 of 44




                               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 special-
        ized 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—im-
        portantly, without overcharging (and thus degrading) the battery.
        Deltona owns the federally registered trademarks “Battery Ten-
        der” 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 com-
        petition 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 or-
        dered 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 instruc-
        tion. Finally, NOCO seeks to vacate the district court’s disgorge-
        ment 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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        24-13590                Opinion of the Court                           3

                                            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 co-
        founder 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 be-
        ing overcharged and prolonged the life and the quality of the bat-
        tery.” 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 be-
        lieved, 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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        4                         Opinion of the Court                    24-13590

        tenders for Harley-Davidson and maintained “co-branding rela-
        tionships” with other partners, pursuant to which it placed its Bat-
        tery 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 pow-
        ersports. 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 en-
        tered 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 pro-
        moting 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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        24-13590               Opinion of the Court                         5

        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 “exces-
        sive . . . 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] con-
        sumer 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 Ulti-
        mate Charger”; “The most advanced battery tender for any vehi-
        cle”; “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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        6                      Opinion of the Court                24-13590

        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 “bat-
        tery tender” in some of its chargers’ product descriptions on Ama-
        zon—namely, those promoted close to Prime Day, a once-a-year
        sales event available to Amazon Prime members. By doing so, Del-
        tona argued, NOCO “dr[o]ve traffic to [NOCO’s] products” with-
        out having to pay for keywords, which were “much more expen-
        sive” 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 mar-
        keting firms and consumers—even “correcting” those who
        thought “battery tender” referred to a particular brand. For in-
        stance:
            • In 2014, NOCO President Jonathan Nook asked a digital
              marketing firm to purchase a list of keywords. His list in-
              cluded “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 man-
              ager 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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        24-13590              Opinion of the Court                       7

           • 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 com-
             petitor’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 bat-
             tery.” 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 nev-
        ertheless 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 sec-
        ond 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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        8                         Opinion of the Court                     24-13590

        Deltona pointed to a virtual brainstorming session regarding Ama-
        zon 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 mes-
                               saging.
               …
               Brown:          The Winter Battery Tender with Zero
                               Overcharge.
               McCullar:       I like that one because it’s kind of pas-
                               sive aggressive [�] 2
               Brown:          It’s really passive aggressive [�] I envi-
                               sion 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 ap-
        peared between the NOCO employees.
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        24-13590                Opinion of the Court                         9

        after Deltona sent a cease-and-desist letter. See Pl.’s Ex. 61F, Dkt.
        No. 318–42.
                Deltona proffered evidence that NOCO’s infringement con-
        fused consumers. For instance, the director of advertising at Del-
        tran, a former Deltona subsidiary that was spun off but still handles
        Deltona’s marketing [Doc. 341 at 44], testified that one of its cus-
        tomer-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. Simi-
        larly, an email exchange in the record shows that a retailer consid-
        ering 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 un-
        der § 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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        10                      Opinion of the Court                     24-13590

        advertising in violation of § 43(a) of the Lanham Act, and that Del-
        tona was entitled to actual damages of $1.3 million. The jury also
        found by clear and convincing evidence that NOCO had commit-
        ted 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 trade-
        mark infringement, FDUTPA, and actual damages.3
               The district court then held a bench trial to address Del-
        tona’s request for equitable relief. The court ordered NOCO to
        disgorge profits in the amount of $12,135,943.70 and issued a per-
        manent injunction. The injunction prohibited NOCO from “sell-
        ing, 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 partic-
        ular, 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 compara-
        tive advertising—i.e., advertising that clearly compares alternative




        3 NOCO doesn’t challenge the punitive-damages award on appeal.
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        24-13590                   Opinion of the Court                                11

        brands. 4 NOCO filed post-judgment motions challenging the in-
        junction, 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 discre-
        tion 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 “adver-

        tising that compares alternative brands on objectively measurable attributes
        or price, and identifies the alternative brand by name, illustration or other dis-
        tinctive information.”
16 C.F.R. § 14.15
(b) n.1.
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        12                         Opinion of the Court                       24-13590

        terms “battery tender” and “Deltran battery tender” are “generic,”
        and thus not protectable. 5
               Marks are classified by their distinctiveness along a spec-
        trum: 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 an-
        other 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 nonmov-
        ing 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 war-
        ranted 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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        24-13590                Opinion of the Court                          13

        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 ge-
        neric in relation to some things but not to others: “Ivory,” for in-
        stance, is generic in relation to elephant tusks but “arbitrary”—and
        thus protectable—as applied to soap. Soweco,
617 F.2d at 1183
. Sig-
        nificantly 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 “esca-
        lator” 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 “cello-
        phane”).
               “Descriptive” marks are presumptively invalid; they are pro-
        tectable 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 ded-
        icated 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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        14                     Opinion of the Court                24-13590

                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 synony-
        mous 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 fac-
        tors: “(1) the length and manner of its use; (2) the nature of adver-
        tising 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 prod-
        uct 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 spe-
        cific 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 ser-
        vices”; 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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        24-13590               Opinion of the Court                        15

        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 cam-
        eras 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 in-
        herently 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 Appel-
        lant 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 ev-
        idence of the validity of the registered mark.”
15 U.S.C. § 1057
(b).
        That means registration presumptively demonstrates both the
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        16                     Opinion of the Court                 24-13590

        “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 vehi-
        cle or application using lead acid or gel batteries.” “Battery Ten-
        der” 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 charac-
        terized as (at least) descriptive. The term itself entails some level
        of abstraction—“tend[]” is more a metaphorical than literal descrip-
        tion 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 “bat-
        tery tender” might even be suggestive; it “suggest[s] characteristics
        of the good[]” and seems to require at least some “effort of the im-
        agination” 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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        24-13590                Opinion of the Court                        17

        of historical fact, it’s not accurate to say that “battery tender” re-
        ferred from the very beginning simply to “a kind of battery-charg-
        ing 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 in-
        vested 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, partic-
        ularly 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 ac-
        quired a secondary meaning associating it with Deltona. Particu-
        larly in light of Deltona’s marks’ federally registered status, we hold
        that there was sufficient evidence to support the jury’s determina-
        tion that those marks are valid.
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        18                     Opinion of the Court                24-13590

                                         B
               There is also sufficient evidence to support the jury’s deter-
        mination that the term “battery tender” hadn’t become generic by
        2020. That occurs if a registered mark’s “primary signifi-
        cance . . . 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 ex-
        pert in which 78% of 558 respondents reported that they believed
        that “Battery Tender [was] a type of product” rather than a refer-
        ence 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 con-
        tended, 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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        24-13590                    Opinion of the Court                                19

        tenders. To be sure, NOCO defended the survey, asserting that its
        respondents represented the “relevant public”; they were “ex-
        posed” to battery tenders because they were prospective purchasers
        of battery tenders. But a jury could reasonably have credited Del-
        tona’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. Be-
        cause 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).
USCA11 Case: 24-13590      Document: 76-1      Date Filed: 08/04/2026      Page: 20 of 44




        20                      Opinion of the Court                  24-13590

               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 good-
        will, 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 engag-
        ing in a “broad[], systematic attack on the Battery Tender brand
        across multiple channels.” Br. of Appellee at 27. In particular, Del-
        tona alleges that NOCO engaged in the following conduct: (1) It
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        24-13590               Opinion of the Court                        21

        “excessively” bid on keywords including the term “battery tender”
        and its variants to boost its ads’ placement in Amazon search re-
        sults; (2) it used the term “battery tender” in the text of its Amazon
        ads; (3) it used “battery tender” in its product descriptions on Am-
        azon; and (4) it held out its own chargers as “battery tenders” in
        communications with marketing firms and consumers. We’ll con-
        sider NOCO’s contentions in turn.
                                          A
                Deltona claims that NOCO engaged in “excessive . . . key-
        word 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 ques-
        tion 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 pur-
        chasing keywords—without some other evidence of consumer confu-
        sion—is sufficient to constitute trademark infringement.” (empha-
        sis added)). We now hold, to the contrary, that it doesn’t.
                Keyword bidding doesn’t constitute trademark infringe-
        ment for a simple reason: It’s not “likely to cause consumer confu-
        sion with the plaintiff’s mark.” FCOA,
57 F.4th at 946
. And it’s un-
        likely 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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        22                      Opinion of the Court                 24-13590

        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 NOCO-
        sponsored ad, whether or not driven by keyword bidding, may well
        recognize the promoted NOCO product as an alternative to con-
        sider, but he’s unlikely for that reason alone to mistake it for Del-
        tona’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-the-
        scenes 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 Del-
        tona’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
USCA11 Case: 24-13590      Document: 76-1      Date Filed: 08/04/2026      Page: 23 of 44




        24-13590                Opinion of the Court                         23

        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 brick-
        and-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 cir-
        cuits. 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 competi-
        tor’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. Ad-
        ler, 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 ad-
        vertising 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. In-
        stead, “what consumers encountered in the marketplace” were the
        resulting ads, Lerner & Rowe, 119 F.4th at 726 (citation modified),
USCA11 Case: 24-13590     Document: 76-1      Date Filed: 08/04/2026    Page: 24 of 44




        24                     Opinion of the Court                24-13590

        which weren’t unlawful, at least so long as they didn’t use Del-
        tona’s marks—i.e., hold themselves out as selling Deltona’s prod-
        ucts. 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 com-
        pany’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 con-
        duct was likely to mislead consumers into thinking that it sold “bat-
        tery tenders.” NOCO insists that its ads weren’t confusing because
        Amazon marked them as “sponsored” and customers would there-
        fore 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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        24-13590               Opinion of the Court                        25

        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 Win-
        ter Battery Tender with Zero Overcharge,” NOCO employees
        openly discussed their company’s president’s desire to “refer to Bat-
        tery 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 Ten-
        der in the messaging just like we have for the current ad messag-
        ing.” (citation modified)). And indeed, the employees green-
        lighted the slogan precisely because it used Deltona’s mark. Id. (“I
        like that one because it’s kind of passive aggressive [�]. ”). A rea-
        sonable 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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        26                      Opinion of the Court                 24-13590

        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 key-
        words, which are “much more expensive” during Prime Day sea-
        son. 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 Del-
        tona’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 ac-
        cept the district court’s characterization of the evidence for pur-
        poses of our analysis. We think it clear that a reasonable jury could
        find that the product descriptions were part of an effort to misap-
        propriate Deltona’s goodwill and confuse consumers. See FCOA,
57 F.4th at 947
.
              NOCO contends that it didn’t commit trademark infringe-
        ment 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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        24-13590                Opinion of the Court                         27

        deploys a variant of the argument that it (as it turns out, success-
        fully) made regarding keyword bidding. In particular, NOCO says,
        because Deltona didn’t prove that any consumer was likely to ac-
        tually read the term “battery tender” in NOCO’s product descrip-
        tions, 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 funda-
        mental 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 featur-
        ing one of NOCO’s chargers said, in so many words, that it was a
        “battery tender.” And second, whereas bidding on the term “bat-
        tery tender” as a keyword would trigger a “sponsored” ad that
        would alert a consumer that the displayed product wasn’t Del-
        tona’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 pro-
        vider of alternatives to battery tenders, as it did, for instance, when
        using a keyword-bidding strategy to drive traffic to its own prod-
        ucts. The inclusion of “battery tender” in the description automat-
        ically not only affected Amazon search results but also drove shop-
        pers searching for Deltona’s battery tenders to NOCO chargers
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        28                     Opinion of the Court                 24-13590

        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 bat-
        tery tender is. NOCO’s president, Nook, specifically told the com-
        pany’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 func-
        tion . . . 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 “Bat-
        tery Tender” was a different brand, a NOCO support-chat em-
        ployee insisted that a “battery tender” was fundamentally a prod-
        uct: “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 in-
        deed, 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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        24-13590               Opinion of the Court                        29

               A reasonable jury certainly could have concluded that these
        explicit statements to customers—that “battery tender” was a ge-
        neric term—were likely to confuse them.
                                       * * *
                To briefly recap, the factors that bear on likelihood of con-
        fusion 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’ ad-
        vertising media, (6) the infringer’s intent to misappropriate the in-
        fringed 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 bat-
        tery-maintaining chargers. Factor (6): NOCO intended to misap-
        propriate 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 ge-
        neric. And Factor (7): Actual confusion is apparent from (a) a re-
        tailer 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 conversa-
        tion on NOCO’s website in which a sales rep told a putative cus-
        tomer 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 sup-
        port 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 infringe-
        ment.
                                         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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        24-13590                Opinion of the Court                         31

        determination that the company violated the Florida Deceptive
        and Unfair Trade Practices Act.
                FDUTPA prohibits “[u]nfair methods of competition, un-
        conscionable acts or practices, and unfair or deceptive acts or prac-
        tices in the conduct of any trade or commerce.”
Fla. Stat.
        § 501.204
(1). FDUTPA violations can be based on “[a]ny law, stat-
        ute, 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 designa-
        tion 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 modi-
        fied)).
               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 suf-
        fered 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).
USCA11 Case: 24-13590      Document: 76-1       Date Filed: 08/04/2026      Page: 32 of 44




        32                      Opinion of the Court                   24-13590

                To make its damages case, Deltona points to “harm to its
        reputation or goodwill” that it says resulted from NOCO’s infring-
        ing 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, conse-
        quential damages are indirect losses arising from a defendant’s al-
        legedly illegal conduct. Deltona’s theory is that consumer confu-
        sion harms its reputation and goodwill, which in turn causes con-
        sumers to buy NOCO’s chargers rather than its own battery ten-
        ders. 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., Wynd-
        ham Vacation Resorts, Inc. v. Timeshares Direct, Inc.,
123 So. 3d 1149,
        1152
(Fla. Dist. Ct. App. 2012) (refusing damages but granting in-
        junctive relief under FDUTPA where a competitor’s deceptive mis-
        representations could create consumer confusion and loss of good-
        will); 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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        24-13590                 Opinion of the Court                            33

                                             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 un-
        der § 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 des-
        ignation of origin);
id.
§ 1125(a)(1)(B) (false advertising). Section
        43(a)(1)(A) effectively codifies a slightly broader version of trade-
        mark infringement than § 32, prohibiting a term’s use in com-
        merce—regardless of whether it’s registered as a mark—if it’s
        “likely to cause confusion” or “deceive” as to the “origin, sponsor-
        ship, or approval of [one’s] goods.” Id. § 1125(a)(1)(A). Section
        43(a)(1)(B), by contrast, prohibits false advertising, or misrepresen-
        tations 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 instruc-
        tion on false advertising, we first examine the complaint to deter-
        mine 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).
USCA11 Case: 24-13590       Document: 76-1     Date Filed: 08/04/2026    Page: 34 of 44




        34                      Opinion of the Court                24-13590

                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 allega-
        tions 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 fol-
        lowing substantive allegations:
             • NOCO’s use of Deltona’s marks “is likely to deceive con-
               sumers as to the origin, source, sponsorship, or affiliation of
               [NOCO’s] products, and is likely to cause consumers to be-
               lieve, contrary to fact, that [NOCO’s] products are sold, au-
               thorized, endorsed, or sponsored by [Deltona], or that
               [NOCO] is in some way affiliated with or sponsored by [Del-
               tona].” Id. ¶ 66.
             • NOCO’s use of Deltona’s marks “constitutes use of a false
               designation of origin and misleading description and repre-
               sentation 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 affilia-
               tion, 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 Lan-
               ham Act,
15 U.S.C. § 1125
(a).”
Id. ¶ 69
.
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        24-13590                Opinion of the Court                        35

               The district court thought the phrase “misleading descrip-
        tion and representation of fact,”
id. ¶ 67
, when read in conjunction
        with the complaint’s “numerous allegations involving advertise-
        ments” and its generic citation to § 43(a)—rather than § 43(a)(1)(A),
        in particular—warranted a separate jury instruction on false adver-
        tising 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 la-
        bel but also the surrounding allegations—the complaint’s assertion
        that NOCO’s use of Deltona’s marks constituted “misleading de-
        scription 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, spon-
        sorship, 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, Del-
        tona 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 there-
        fore disagree with the district court’s conclusion that Deltona’s
        complaint “undoubtedly” put NOCO on “notice of [a] false adver-
        tisement 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
USCA11 Case: 24-13590      Document: 76-1      Date Filed: 08/04/2026      Page: 36 of 44




        36                      Opinion of the Court                  24-13590

        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 recog-
        nized 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 of-
        fered evidence that could have supported an unpleaded false-adver-
        tising claim—such as NOCO using “battery tender” in the text of
        its Amazon ads and thus misrepresenting its own products as Del-
        tona’s—that evidence wasn’t specific to false advertising; rather, it
        could just as well have supported the properly pleaded unfair-com-
        petition 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 in-
        struction here gives rise to such a doubt; it directed jurors to
USCA11 Case: 24-13590        Document: 76-1        Date Filed: 08/04/2026        Page: 37 of 44




        24-13590                  Opinion of the Court                              37

        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 con-
        duct was willful and deliberate, (2) the defendant was unjustly en-
        riched, 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 acknowl-
        edging that it “c[ould not] use Battery Tender in [its] messaging,”
        NOCO continued to do so in its Amazon ads, Amazon product de-
        scriptions, 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 discre-

        tion, 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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        38                     Opinion of the Court                24-13590

               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 De-
        cember 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 presi-
        dent—to reach the final amount of $12,135,943.70.
               NOCO contends (1) that any disgorgement should be lim-
        ited to profits directly traceable to NOCO’s use of Deltona’s marks
        on Amazon, (2) that Deltona had unclean hands because it also en-
        gaged 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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        24-13590                Opinion of the Court                        39

        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 au-
        thorizing 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 ‘Bat-
        tery 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 vio-
        lation 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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        40                     Opinion of the Court                 24-13590

                In contesting the issuance of the injunction, NOCO con-
        tends 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 na-
        ture 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 Del-
        tona’s marks. The district court found that that NOCO’s “[v]olun-
        tary 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 par-
        ticular, NOCO asserts that because the term “tender” isn’t trade-
        marked, 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 trans-
        gressed the governing legal standards, a court of equity is free to
        proscribe activities that, standing alone, would have been unassail-
        able.”
Id.
USCA11 Case: 24-13590      Document: 76-1      Date Filed: 08/04/2026     Page: 41 of 44




        24-13590                Opinion of the Court                        41

               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” ex-
        pressly, there’s no question that its slogan referred to battery ten-
        ders, 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 “ten-
        der,” 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 per-
        manent 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 deci-
        sion awarding Deltona $1.3 million in actual damages?
USCA11 Case: 24-13590     Document: 76-1     Date Filed: 08/04/2026    Page: 42 of 44




        42                     Opinion of the Court               24-13590

               Damages for trademark infringement under the Lanham
        Act may include “any damages sustained by the plaintiff.” Arono-
        witz 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 good-
        will. Aronowitz,
513 F.3d at 1241
. Here, the $1.3 million award was
        for damage to Deltona’s reputation and goodwill. See Dist. Ct. Or-
        der, Mar. 30, 2022, at 7, Dkt. No. 410.
               NOCO first asserts that Deltona wasn’t entitled to any dam-
        ages—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. Be-
        cause, 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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        24-13590                Opinion of the Court                        43

        as we can tell, the $1.3 million covers Deltona’s claims for (1) trade-
        mark 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 dam-
        ages 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. Ac-
        cordingly, we AFFIRM the district court’s denial of NOCO’s JMOL
        and new-trial motions challenging the jury’s verdicts on those is-
        sues. 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 opin-
        ion—in particular, our holdings that keyword bidding doesn’t
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        44                    Opinion of the Court                24-13590

        constitute trademark infringement, that Deltona’s FDUTPA dam-
        ages award cannot stand, and that Deltona’s false-advertising claim
        wasn’t properly pleaded or tried.