Virtual School plans appeal of ‘trademark bully’ ruling

Florida’s public online school spent more than $2 million pursuing a trademark infringement case it lost in federal court last month but now plans to appeal to defend the school’s quarter century of “educational services and reputation in Florida.”

The Florida Virtual School — financed with $300 million in taxpayer money — has used four outside law firms on its case against Stride, a Virginia-based online education company that was called K12 when the virtual school sued it in 2020.

The school filed the lawsuit “to protect against K12’s repeated infringement on FLVS trademarks, which deliberately blurred the lines between the two organizations and caused confusion for Florida students and families,” wrote Hailey Fitch, a spokeswoman for the virtual school, in an email last month.

The virtual school paid the four law firms a total of more than $2.4 million to date, according to figures provided by the school, with more bills expected during the appeal.

Stride, which called the lawsuit “a complete waste of taxpayer money,” wants Florida’s virtual school to pay its attorney’s fees, too, now that a judge has ruled in its favor.

It also wants the school’s attorneys to face sanctions for pursuing “meritless claims and advancing spurious arguments in its three-year, scorched earth campaign against Stride,” according to motions it has filed in U.S. District Court in Orlando. At one point, according to Stride’s motion for sanctions, the virtual school claimed $6 billion in damages and argued it was entitled to some of Stride’s nationwide profits.

Though the school’s “hyperbolic claims had no factual basis, as now has been proven, Stride had no choice but to employ the resources necessary to defend itself fully and vigorously,” the company’s attorneys wrote in arguing for the sanctions.

Judge Gregory Presnell has not yet ruled on those requests.

Presnell’s ruling in Stride’s favor in January came just after the case hit the three-year mark. He called the virtual school’s claims “feeble” in his order and wrote that the school, sometimes called by its acronym FLVS, had presented “no credible evidence” that K12 infringed on its trademarks or confused parents looking for virtual classes for their children, as it alleged.

Instead, Florida’s virtual school behaved like a “trademark bully” in pursuing the case, he added.

The virtual school filed its notice of appeal on Feb. 12 and also asked

Presnell to hold off a ruling on Stride’s request for sanctions, which it said “lacks merit.”

The virtual school, considered a national pioneer in online education, serves more than 240,000 students, most of them using FLVS as a part-time option, often to take online classes that are not available at their schools or do not fit into their school-day schedules. It is headquartered in Orlando.

“We take trademark infringement very seriously, and as such, our legal team felt it was important to defend our 26 years of educational services and reputation in Florida from K12 Inc. that directly infringed on our trademarks,” Fitch wrote this week when asked about the appeal.

The lawsuit was part of what the judge called a “marathon trademark dispute” between the two online providers that began 12 years ago.

Florida’s virtual school won its initial lawsuit against K12, reaching a settlement with the private company in 2015 that meant K12 had to stop marketing its Florida Virtual Academy/Program and its acronym FLVA/P, which the virtual school said was too similar to its name and FLVS acronym.

The virtual school said it sued again in late 2020 because it thought K12 breached that agreement when it started a virtual program called the Florida Online School with the small Hendry County school district in southwest Florida in 2019. In filing the lawsuit, FLVS noted that K12 was advertising “Florida virtual schooling” on its website, which it viewed as a violation of the previous agreement, and using a blue color scheme similar to the virtual school’s on its website.

But in his order, Presnell wrote that FLVS produced no evidence of confusion, except that all online education providers operate in a “muddled marketplace replete with generically and descriptively named participants.”

The judge also noted that when the virtual school complained to K12, the company renamed the Hendry school the Digital Academy of Florida. The virtual school still sued, however.

FLVS’ trademarks are also “inherently weak,” the judge concluded, calling them “generic” and “descriptive,” which makes it hard to argue K12 was guilty of infringing on them.

Presnell also said the two company graphics were different, as the Florida Online School used a drawing of a panther and gray, tan and dark blue. Florida Virtual School’s graphic is bright blue with only text, he noted.