Virtual School Company Appeals Trademark Loss In Which Judge Called Them A ‘Trademark Bully’

Usually when you hear the term “trademark bully” tossed around, it’s done so either by members of the media, such as us here at Techdirt, or by defense attorneys making a point before the court. In the case of The Florida Virtual School, however, that moniker was given to the company by the judge that ruled against it in a trademark dispute with another company that offers virtual schooling.

FLVS, as the company commonly goes by, sued an organization called K12 at the time, since rebranded as Stride, for trademark infringement. The two companies initially settled a 2015 trademark suit surrounding the latter’s use of branding for its services as “Florida Virtual Schooling.” Now, I would have argued at the time that such a term is purely descriptive and couldn’t possibly be trademark infringement, but, alas, a settlement was reached so we never got to see a test of that argument in court. But then came the 2020 lawsuit brought by FLVS over equally descriptive terms Stride is using.

The virtual school said it sued again in 2020 because it thought K12 breached that 2015 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.

The virtual school, Fitch said, is required by law to protect its intellectual property. It filed the 2020 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,” she wrote.

Again, this is a purely descriptive mark. It’s not trademark infringement. Despite that, FLVS reportedly spent well over $2 million to bring the suit, all of which ended in defeat for FLVS. And not just defeat, but defeat combined with a scathing rebuke from the judge.

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.

It’s nice to see the court call out the behavior of a trademark bully for what it is: trademark bullying. And, after $2 million plus dollars spent on this nonsense and a beat-down of a judgement in the case, you would have thought that FLVS would have learned its lesson and slinked away.

Instead, the company is going to appeal the ruling and spend even more money on this loser of a case.

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.”

It certainly doesn’t lack merit if the lower court’s ruling holds up. The claims made in the original suit are thin to the point of being comical. And, in the case of suits like this being filed when competent attorneys should know better, legal fees ought to absolutely be on the table.

More to the point, I can’t imagine why the continued expense to FLVS to carry on with this nonsense makes even the slightest bit of business sense. Here’s to another scathing ruling in the very near future.