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Florida Virtual School appeals in a trademark fight

A panel of federal judges on May 25, 2023, shielded eight current and former legislative leaders from having to testify in a challenge to a congressional redistricting plan that Gov. Ron DeSantis pushed through the previous year.
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The public Florida Virtual School has gone to a federal appeals court in a years-long legal fight about whether a private competitor infringed on its trademarks.

The public Florida Virtual School has gone to a federal appeals court in a years-long legal fight about whether a private competitor infringed on its trademarks.

The public Florida Virtual School has gone to a federal appeals court in a years-long legal fight about whether a private competitor infringed on its trademarks.

Florida Virtual School last week filed a notice of appeal after U.S. District Judge Gregory Presnell issued a ruling in January that described the claim for trademark infringement as “feeble” and suggested Florida Virtual School was trying to “bully” competitors.

The notice, as is common, does not detail arguments that attorneys for Florida Virtual School will make at the 11th U.S. Circuit Court of Appeals.

Florida Virtual School filed the lawsuit in 2020 against the Virginia-based K12, Inc. and K12 Florida, LLC, over the companies’ use of the name Florida Online School. The lawsuit came after a 2015 settlement in an earlier trademark dispute.

K12, which became known as Stride, Inc., began using the name Digital Academy of Florida instead of Florida Online School in 2021, Presnell’s ruling said. But the lawsuit continued, with Florida Virtual School contesting the prior use of Florida Online School and seeking damages.

Presnell’s ruling said the defendants continued to use the words “Florida online school” in a non-trademarked way. But he wrote that Florida Virtual School did not present “credible evidence of actual confusion in this case,” adding that it did not offer an expert or a statistical survey about consumer confusion.

“Plaintiff’s ‘strongest evidence’ supporting its claim of nefarious intent is that defendants continue to use the words, ‘Florida online school,’ on their website — contending, incredibly, that any use of those words in any context constitutes trademark usage,” Presnell wrote. “It was not enough that defendants completely rebranded their entire online school; Plaintiff now insists that defendants — who operate an online school in Florida — must not use those words anywhere on their websites. Suffice it to say, plaintiff does not retain exclusive rights to the phrase, ‘Florida online school,’ when it is used to simply describe defendants’ available online schooling options in Florida.”

After Presnell’s ruling, Stride filed a motion seeking sanctions against Florida Virtual School and its attorneys. In part, the motion said Florida Virtual School improperly pursued claims that the company’s alleged trademark infringement also caused damage outside Florida.

“Plaintiff never had any evidence that it suffered any monetary loss outside of Florida as a consequence of Stride’s use of the FLOS (Florida Online School) program name or any other Florida-related terms in its non-Florida advertising or promotion efforts,” the motion said.

But Florida Virtual School urged dismissal of the motion, saying in a court document that it had “a good-faith basis to claim that K12 infringed upon FLVS’s (Florida Virtual School’s) trademarks outside of Florida.” It said evidence provided a “reasonable factual basis to argue” that non-Florida residents could have been confused.

“Since both FLVS and K12 compete nationwide, such confusion amongst non-Florida residents could easily have harmed FLVS outside of Florida, and at the least provided FLVS with a reasonable factual basis to argue for disgorgement of K12’s non-Florida profits,” the court document said.

Florida Virtual School last week asked that the sanctions issue be put on hold while the underlying appeal in the case plays out.

Jim Saunders is the Executive Editor of The News Service Of Florida.