Full Opinion

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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 2 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 3 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 4 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 5 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 6 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 7 of 44 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, USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 8 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 9 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 10 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 11 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 12 of 44 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). USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 13 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 14 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 15 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 16 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 17 of 44 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. USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 18 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 19 of 44 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 USCA11 Case: 24-13590 Document: 76-1 Date Filed: 08/04/2026 Page: 21 of 44 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. Keywo