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Florida Virtual School Wins Round in Trademark Battle Against K12 Inc.

By Mark Walsh — October 10, 2013 2 min read

Two prominent online education providers are locked in a trademark-infringement battle, with a federal appeals court on Thursday handing a temporary victory to one of them.

Florida Virtual School, a state agency based in Orlando that provides online courses not just to all of Florida’s school districts but also to students in other states, has sued K12 Inc., the Herndon, Va.-based online education firm, alleging that K12 infringed its trademarks and caused market confusion.

Florida Virtual School, which uses the acronym FLVS, was launched in 1997. In 2003, the state started a pilot program allowing other online providers to serve a limited number of students, including K12.

Florida Virtual School’s suit alleges that K12 adopted the name Florida Virtual Academy for its services in the state, used the acronym FLVA, and that it paid for a sponsored listing on a Web address that was similar to Florida VirtualSchool’s site to divert traffic to its business.

K12 fought the suit, asserting in a court document that the Florida Department of Education was aware of K12’s use of trademarks such as Florida Virtual Academy, and “in fact, expressly approved such use.” The company also uses “virtual academy” in other states, it pointed out. K12 argued that Florida Virtual School was not the legal owner of the trademarks under Florida law and thus could not bring the federal trademark-infringement suit. A federal district court agreed and dismissed the suit.

But in its Oct. 10 decision in Florida Virtual School v. K12 Inc., a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, said Florida law was unclear. State law gives Florida VirtualSchool the right “to acquire, enjoy, use, and dispose of ... trademarks and any licenses and other rights or interests thereunder or therein.”

But another part of state law gives Florida’s department of state the right to enforce trademarks. The district court concluded that only that department had standing to sue over trademark infringement.

The 11th Circuit court panel said the separate provisions of state law were “in tension with one another.”

“On the one hand, ... the right to enjoy and use trademarks would be largely ethereal if Florida VirtualSchool could not protect against infringement,” the appeals court said. “On the other hand, the rights of the Department of State with respect to trademarks (and other intellectual property) do not seem to contemplate a co-equal partner.”

The federal appellate court certified a question to the Florida Supreme Court, asking its advice about how to interpret the two statutes. That means Florida Virtual School’s suit is at least temporarily revived.

That’s some positive news for the Florida organization. Education Week‘s Benjamin Herold reported in August that Florida Virtual School is facing troubled times because of new state legislation aimed at containing costs and promoting competition among providers offering individual online courses to students. Meanwhile, the number of online public charter schools that K12 manages in the state is expanding, with new schools opening this fall in Broward, Duval, Palm Beach, and Pasco counties, Herold reported in a related story.

A version of this news article first appeared in The School Law Blog.

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