Opinions — Tuesday, August 4, 2026

The Eleventh Circuit affirmed in part, reversed in part, and remanded for a new trial on damages following jury verdicts and a bench trial on equitable relief. Deltona Transformer Corporation owns the federally registered trademarks "Battery Tender" and "Deltran Battery Tender" for specialized vehicle-battery chargers. The NOCO Company was accused of infringing these marks by: (1) bidding on Deltona's marks as keywords to trigger NOCO ads in Amazon search results; (2) using "battery tender" in the text of its own Amazon ads; (3) incorporating "battery tender" in product descriptions on Amazon; and (4) referring to its chargers as "battery tenders" in communications with marketing firms and customers. The jury found for Deltona on § 32 trademark infringement, § 43(a)(1)(A) unfair competition and false designation of origin, common-law trademark infringement, Florida FDUTPA claims, and § 43(a)(1)(B) false advertising, awarding $1.3 million in actual damages and $5.75 million in punitive damages. The district court ordered $12.1 million in disgorgement and issued a permanent injunction prohibiting NOCO from using "Battery Tender," "Deltran Battery Tender," "Deltran," or "Tender" (except for keyword purchases and comparative advertising). The Eleventh Circuit held that Deltona's marks are at least descriptive with acquired secondary meaning rather than generic, that keyword bidding alone does not constitute infringement, but that NOCO's visible use of the marks in ad text and communications did infringe.

The court's keyword-bidding holding establishes circuit precedent on a question of first impression: the mere purchase of a competitor's trademark as a search-engine keyword, without the mark appearing in the resulting advertisement, cannot constitute trademark infringement under the Lanham Act because consumers do not see the behind-the-scenes keyword purchase and thus cannot be confused by it—only distracted by the alternative products displayed. The court joined unanimous authority from the Second, Fifth, Ninth, and Tenth Circuits in holding that likelihood of confusion "turn[s] on what the consumer s[ees] on the screen," rejecting any theory that invisible keyword use alone satisfies the confusion requirement. On the validity question, the court afforded substantial weight to federal registration as "prima facie evidence" of validity and characterized "battery tender" as at minimum a descriptive mark that had acquired secondary meaning through three decades of use, promotional investment, co-branding relationships, and industry recognition—rejecting NOCO's consumer survey showing 78% perceived the term as generic on methodological grounds relating to whether respondents constituted the "relevant public." The court held that NOCO's visible uses of Deltona's marks in ad text (e.g., "More than just a Battery Tender") and in communications with customers constituted "wheelhouse trademark infringement" because they expressly held out NOCO's products as "battery tenders," with evidence of knowing intent rendering NOCO's claim that "sponsored" labels dispelled confusion unpersuasive.

The Ninth Circuit vacated the district court's permanent injunction entered after a bench trial and remanded for entry of judgment in favor of VIP Products LLC on Jack Daniel's Properties, Inc.'s federal trademark dilution claim under 15 U.S.C. § 1125(c)(2)(C) (the Trademark Dilution Revision Act). The case involved VIP's "Bad Spaniels" dog toy, which parodies Jack Daniel's Old No. 7 Tennessee Sour Mash Whiskey bottle and trade dress with a squeaky toy featuring scatological references including "Old No. 2 On Your Tennessee Carpet" and "43% POO BY VOL." After the Supreme Court held in Jack Daniel's Properties, Inc. v. VIP Products, LLC, 599 U.S. 140 (2023), that the TDRA's noncommercial-use exception does not shield source-identifying parodies and remanded for consideration of the tarnishment claim, the district court found VIP liable for dilution by tarnishment based on the toy's association of Jack Daniel's marks with dog excrement. The Ninth Circuit held that to prove dilution by tarnishment, a plaintiff must establish that its mark is famous, the allegedly diluting mark is similar to the famous mark, and the diluting mark creates a mental association with the famous mark likely to damage the famous mark's reputation. The court concluded that Jack Daniel's failed to meet its burden because it proved fame only for the "Jack Daniel's" word mark and its registered trade dress—not for "Old No. 7"—and failed to demonstrate that the corresponding junior marks ("Bad Spaniels" and the toy's trade dress) were likely to harm the reputation of those famous marks.

The decision matters for its rigorous insistence on mark-by-mark proof in tarnishment claims, rejecting aggregation of senior marks or borrowing of fame across a brand family. The court held that under the TDRA's text, a plaintiff cannot group multiple marks together and prove collective fame; instead, each allegedly famous mark must independently satisfy the statutory factors in 15 U.S.C. § 1125(c)(2)(A), and only similar junior marks corresponding to proven-famous senior marks may be considered in the likelihood-of-harm analysis. The court further rejected the plaintiff's expert testimony on tarnishment where the expert applied generic consumer-psychology research about disgust associations with defecation but conducted no studies specific to the accused product, holding this insufficient to prove that scatological references on a parodic dog toy—as opposed to a consumable product—were likely to generate harmful associations with the famous marks. Critically, the court held that parody remains relevant to the tarnishment analysis even after the Supreme Court's holding that source-identifying parodies cannot invoke the TDRA's noncommercial-use exception, reasoning that the clarity of parodic intent affects whether consumers form negative associations that harm the senior mark's reputation, since successful parody simultaneously evokes the original while communicating that it is "not the original and is instead a parody."

The Federal Circuit vacated and remanded a district court's grant of a preliminary injunction in favor of Socket Solutions, LLC against Import Global, LLC for alleged infringement of U.S. Patent No. 9,509,080, which covers an electrical wall outlet cover. The court held that the district court erred in its claim construction of the terms "backplate" and "pin" in asserted claim 19, rendering its likelihood-of-success analysis flawed. Specifically, the court rejected the district court's construction of "backplate" as "the component of the cover, opposing the frontplate, that includes at least one set of electrical prongs," finding that this improperly imposed spatial reference requirements not supported by the specification. Instead, the court construed "backplate" as "the component forming the cover with the frontplate, such that the maximum thickness of the cover is the distance, at the central portion of the cover, between the frontplate and the component," focusing on cover thickness as described in the written description. The court also found error in the district court's construction of "pin" as a means-plus-function term under 35 U.S.C. § 112(f), holding that "pin" should be given its plain and ordinary meaning because the term does not use the word "means," the specification defines it in structural terms, and the parties agreed skilled artisans understand it as a structure.

The decision clarifies that post-eBay principles barring presumptions of irreparable harm apply equally to preliminary injunctions, not just permanent injunctions. The court explicitly rejected any reliance on the pre-eBay presumption that irreparable harm follows automatically from a clear showing of validity and infringement, confirming that eBay Inc. v. MercExchange, L.L.C. and Robert Bosch LLC v. Pylon Manufacturing Corp. abolished this presumption across all injunctive relief contexts in patent cases. The court's construction methodology emphasizes fidelity to claim language and the specification's explicit teachings over spatial or relational interpretations not required by the patent itself, particularly where the specification defines structural relationships in functional terms (here, minimizing cover thickness). The rejection of a functional construction for "pin" despite some precedent permitting purely functional definitions of structural terms signals careful attention to avoiding overbreadth when a plain meaning exists that a skilled artisan would understand without resort to functional characterization.

The Federal Circuit affirmed the Southern District of Florida's finding of non-infringement under the doctrine of equivalents in this ANDA case involving U.S. Patent Nos. 9,283,174, 9,931,403, and 9,925,264, directed to non-aqueous lidocaine patch compositions. Scilex Pharmaceuticals and co-plaintiffs (exclusive licensee and assignees) alleged that Aveva's proposed generic version of ZTlido® infringed claim 4 of each patent, which requires a dissolving agent consisting of isostearic acid and dipropylene glycol. The central dispute turned on whether the claimed "dissolving agent" must both dissolve the lidocaine and maintain it in a non-crystalline state, or whether it need only prevent crystallization in the finished patch.

The court's claim construction analysis drew heavily on intrinsic evidence to resolve the scope of "dissolving agent." The specification described all six working examples as using the organic acid/polyalcohol combination to dissolve solid lidocaine before mixing with adhesives, and the prosecution history contained repeated, unambiguous statements that "lidocaine is dissolved in an organic acid and a polyalcohol." The court held that while these prosecution statements might not rise to the level of unmistakable disclaimer, they nonetheless "provide cogent evidence" of claim meaning under Personalized Media Communications—demonstrating how the patentee understood the invention even absent formal disavowal. Given this construction, Aveva's use of n-heptane as the sole dissolving solvent could not be equivalent to the claimed two-component dissolving agent, rendering unnecessary the district court's alternative holdings on claim vitiation and prosecution history estoppel.