11th Circuit Rejects Keyword Advertising Liability–Deltona v. NOCO

This case involves two competitors in the vehicle-battery charger industry. The plaintiff calls its offering “Battery Tender” (based on the analogy of a ship’s tender) and claims trademark rights in the term. Believing that the term is generic, NOCO began using the term in reference to its own products. The plaintiff sued for trademark infringement and more. A jury found for the plaintiff and awarded $1.3M in actual damages and $5.75M in punitive damages. The judge added another $12M of equitable disgorgement and issued a permanent injunction, except with respect to keyword ads and comparative advertising. Is “Battery Tender” Generic? The court says that the term “battery tender” isn’t inherently generic because (1) the USPTO registered the term, and “registration puts a heavy thumb on the scale against genericness,” (2) it’s better characterized as a descriptive term because “tend is more a metaphorical than literal description of what a battery tender does,” and it has achieved…