Eleventh Circuit Rules Keyword Bidding Alone Not Infringement

The Eleventh Circuit affirmed in part and reversed in part a district court decision in Deltona Transformer Corp. v. The NOCO Co. The court upheld a finding of trademark infringement and an injunction based on other conduct but ruled that keyword bidding by itself cannot create liability under the Lanham Act.

The panel joined the Ninth Circuit and other sister circuits in concluding that keywords are not visible to consumers and therefore cannot cause a likelihood of confusion. The decision clarifies that internal bidding on competitor marks, without more, does not amount to use in commerce sufficient for infringement.

The case involved battery chargers sold under the “battery tender” mark. Although NOCO prevailed on the keyword issue, the court addressed damages under state unfair competition law and reversed an award that did not meet statutory requirements for actual damages.

Practitioners note the ruling reinforces a growing consensus across circuits that keyword advertising practices require visible trademark use or other evidence of confusion to trigger liability.

Sources: https://www.ipupdate.com/2026/08/keyword-bidding-alone-doesnt-constitute-trademark-infringement/ https://www.akerman.com/en/perspectives/eleventh-circuit-joins-sister-circuits-keyword-bidding-alone-is-not-trademark-in.html