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aggressive the director of advertising at a company that handles deltona s marketing testified that one of its customer 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 and an email exchange in the record shows that a retailer considering whether to stock a new line of battery tenders reached out to noco with an inquiry about deltona s product the jury held that deltona was entitled to actual damages of 1 3 million and that noco had committed intentional misconduct or gross negligence entitling deltona to punitive damages of 5 75 million the district court ordered noco to disgorge profits of over 12 million and issued a permanent injunction the injunction prohibited noco from selling marketing advertising or promoting its products using the terms battery tender deltran battery tender deltran or tender the latter of which was included 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 the injunction exempted keyword purchases and comparative advertising deltona had a genericity survey but the jury could have rejected it the marks weren t inherently generic because they were registered they were descriptive with acquired secondary meaning the fact of registration puts a heavy thumb on the scale against genericness does that mean that the burden is clear and convincing evidence or something else battery tender entails some level of abstraction tend is more a metaphorical than literal description 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 battery tender might even be suggestive it suggest s characteristics of the good and seems to require at least some effort of the imagination to understand how the product works sigh nothing has inherent meaning with the partial exception of onomatopoeia deltona s co founder made up the term based on an analogy to a ship s tender but if he made it up to identify this new category and distinguish it from prior types of chargers that shouldn t matter dry ice didn t have to be the term for solid carbon dioxide the court says that as a matter of historical fact it s not accurate to say that battery tender referred from the very beginning simply to a kind of battery charging device but doesn t explain what the generic word was at the very beginning noco s consumer survey found that 78 of 558 respondents reported that they believed that battery tender was a type of product rather than a reference to a particular brand the jury was free to reject that though deltona had challenged the survey s methodology on the ground that it included people who might simply have been exposed to battery tenders generic use again from shopping near them when walking through an automotive store or department the court then held that keyword bidding alone can t be trademark infringement because the use of the plaintiff s mark for keyword bidding purposes occurs behind the scenes twenty years later they figure this out sincerely thanks abitron likelihood of confusion turn s on what the consumer s ees on the screen and reasonably believe s given the context citing eric goldman and the second ninth and fifth circuit cases to similar effect use in product titles and product descriptions on amazon however was potentially infringing as was use in communications with marketing firms and consumers so that part of the award was upheld unlike keyword advertising t he inclusion of battery tender in the description automatically not only affected amazon search results but also drove shoppers searching for deltona s battery tenders to noco chargers without alerting them in any way through a sponsored tag or otherwise that they weren t really looking at battery tenders a reasonable jury certainly could have concluded that these explicit statements to customers that battery tender was a generic term were likely to confuse them confuse them about what not about source or sponsorship given the statement that it was generic the florida deceptive and unfair trade practices act damages award was also problematic even though the lanham act violation could also violate fdutpa monetary relief in the form of actual damages is available only to a person who has suffered a loss as a result of a violation of this part and 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 thus deltona couldn t base its damages on harm to its reputation or goodwill because consequential damages like that aren t compensable under fdutpa finally the district court erred by instructing the jury on false advertising under the lanham act based on the same conduct deltona s complaint alleged unfair competition and false designation of origin under the lanham act it never separately articulated a false advertising theory it was not enough to use the phrase misleading description and representation of fact when read in conjunction with the complaint s numerous allegations involving advertisements and its generic citation to 43 a to warrant a separate jury instruction on false advertising under 43 a 1 b in context the complaint clearly referred to 43 a 1 a noco neither expressly nor impliedly consented to trying a false advertising claim the court of appeals had substantial and ineradicable doubt whether the jury was properly guided so that part of the judgment was reversed disgorgement was appropriate given the willful conduct recalculation doesn t seem to be required because of how disgorgement is assessed even kicking out the keyword advertising doesn t seem to matter though you d think that sales made through keyword ads alone wouldn t have the right causal relationship also ok an injunction extending a ban on standalone use of tender e ven though noco seems to have ceased its misconduct the record shows that it has after brief interludes repeatedly returned to infringing deltona s marks in fashioning relief against a party who has transgressed the governing legal standards a court of equity is free to proscribe activities that standing alone would have been unassailable but the damage award needed to be reassessed so remand for a new trial it was posted by rebecca tushnet at 12 13 pm no comments email this blogthis share to x share to facebook share to pinterest labels false advertising trademark is an avocado a vegetable or a fruit court says it s ambiguous parashos v once upon a farm no 26 cv 00314 emc 2026 wl 2283647 n d cal aug 7 2026 once upon a farm allegedly violated california consumer protection laws by misleadingly labeling its baby product as the wild rumpus avocado fruit veggie blend when in fact it contains no vegetables but does contain avocados the court found the claim implausible the front of the pouch displays multiple images of avocados along with images of apples banana and pineapples the back lists its ingredients as pineapple banana apple avocado and mint the fda classifies avocados as fruit and mint as an herb so does the pouch contain veggies the target audience is allegedly health conscious parents who are willing to pay a premium to ensure that the food that they provide to their children is nutritious and includes vegetables plaintiff brought the usual california claims dismissal is appropriate if the claim that a label is misleading runs counter to ordinary common sense or the obvious nature of the product and a survey of dictionary definitions of which the court takes judicial notice suggests that the question of whether an avocado is a vegetable is not so clear cut in common parlance notwithstanding the technical botanical definition of avocados as a fruit avocados which contain a pit like peaches or cherries fit the scientific definition of the product of fertilization in a plant with its modified envelopes or appendages specifically the ripened ovary of a seed plant and its contents but another meaning of fruit is the usually edible reproductive body of a seed plant especially one having a sweet pulp associated with the seed avocados like peppers zucchini and other botanical fruits lack the sweet pulp that would place them firmly within the fruit category of popular usage avocados also fit within broad definitions of vegetable such as a usually herbaceous plant such as the cabbage bean or potato grown for an edible part that is usually eaten as part of a meal different dictionaries variously call an avocado a fruit or a vegetable famously in construing a tariff statute the supreme court held that while botanically speaking tomatoes are fruits in the common language of the people they are vegetables nix v hedden 149 u s 304 307 1893 as are the technical seeds beans and lentils avocados are like tomatoes commonly served at meals as ingredients in e g burritos and sandwiches and not like fruits as a sweet snack or a part of a dessert and people eating chips and guacamole are not likely to think they are eating a fruit dip at the very least the claim wasn t unambiguously false see e g henderson v gruma corp 2011 wl 1362188 c d cal apr 11 2011 granting a motion to dismiss on the grounds that a label promising garden vegetables was confirmed by the inclusion of avocado powder dehydrated onion garlic powder and bell pepper gates v upfield us inc 2024 wl 3362857 c d cal july 9 2024 avocado oil is a type of vegetable oil known for its healthy qualities granting a motion to dismiss because a product labeled made with avocado oil and 79 vegetable oil spread would not imply to a reasonable consumer that the product was made without other forms of vegetable oil nor was this plausibly misleading the front label was ambiguous enough that a reasonable consumer would have consulted the back label ambiguous in this context does not simply mean susceptible to more than one reasonable meaning but rather that a reasonable consumer would necessarily have required more information before concluding that the products front labels were making a specific promise such inherent ambiguity was present here the context reinforced that with explicit reference to avocado in the name of the product and a label showing multiple images of avocados as well as bananas apples and pineapples there was no other conceded vegetable shown there is thus an ambiguity as to whether the product contains vegetables other than avocados faced with this ambiguity the reasonable consumer is expected to check the back label for complete information the likelihood that a reasonable consumer would look to the back label was underscored by the fact that the product s target audience was allegedly health conscious parents who would have particular reason to check the back label posted by rebecca tushnet at 10 42 am no comments email this blogthis share to x share to facebook share to pinterest thursday august 13 2026 trademark claim proceeds with essentially no detail despite trade dress failure honest company inc v butterblu llc 2026 wl 2211834 no 2 26 cv 00019 wlh mbk c d cal jul 28 2026 honest sued former partner butterblu for trademark infringement and related claims honest sells products in the diaper and wipes skin and personal care and household and wellness categories it registered two trademarks for honest registered for swaddling and crib blankets and various children and infant related products and also owned honest baby clothing and logo for baby and toddler related products the parties previously entered into an agreement where honest took over ownership of all products in inventory and butterblu sourced marketed and sold these products in exchange for a service fee honest alleged breach for among other things secretly developing and selling a baby apparel product line in direct competition with honest baby clothing brand products honest claimed rights in two print designs with stylized holiday trees and a striped pastel rainbow used on various products that butterblu allegedly copied claimed honest design claimed honest design consumers allegedly commented on online forums such as reddit that butterblu s products look like honest products but rebranded or similar language that butterblu is the creator of honest s products and otherwise expressed confusion as to the source of and or affiliation between the parties respective products honest alleged that at least one consumer has contacted honest with questions about a recent purchase in which the consumer intended to buy honest products from amazon but instead received products bearing a butterblu label honest pine pjs butterblu pine pjs honest rainbow pjs butterblu rainbow pjs butterblu s website allegedly includes a misleading statement that honest s new leadership team ultimately decided to exit the apparel space showing a common tolerance for trademark claims despite butterblu s argument that honest didn t plead use of its marks it was enough to allege that butterblu has used honest s intellectual property without authorization and mislead consumers and prospective consumers into believing the infringing products are affiliated or associated with or sponsored by honest and to submits screenshots showing that butterblu sold products that bear striking resemblance to its own products products not marks ugh and pleading that reddit users have commented on forums about honest and butterblu products looking similar and have expressed confusion as to the source of and or the affiliation between the parties respective products also sufficed plus many courts have held that an ex licensee s continued use of a trademark is enough to establish likelihood of confusion and the court agreed ugh again which trademark especially because the court also says that the trade dress infringement claim failed for want of pleading secondary meaning explain to me how this screenshot shows use of the honest marks honest alleged that intentional copying showed secondary meaning but proof of deliberate copying is not determinative competitors may intentionally copy product features for a variety of reasons thus pleading intentional copying alone is insufficient the online comments about looking like or rebranding weren t enough because they didn t specifically discuss the two claimed prints and looking like does not equal confusion why doesn t this also doom the claim about trademark infringement since the commenters doesn t seem to depend on the word marks or logo false advertising butterblu argued that honest s own public statements confirm the truth of the alleged false...
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