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Fla. Lawmakers Can't Write Laws; 11th Asks State Court for Help

By William Peacock, Esq. on October 18, 2013 | Last updated on March 21, 2019

Florida Virtual School is an online charter high school authorized by statute. It has been around for more than a decade. A few years back, apparently unsatisfied with FLVS's performance, the state opened up the door to private competitors, including K12 Inc., which calls itself Florida Virtual Academy. 

FLVA, which after its pilot program got picked up, also adopted the alternative moniker Florida Virtual Program (FLVP), and which purchased a sponsored listing on FLVS.com (a seemingly cyber-squatted alternative to FLVS's .net address), also maintains a website which has a similar design and color scheme to the elder FLVS program.

FLVS predictably sued FLVA in 2011 for trademark infringement under the Lanham Act and Florida common law, but ran into one tiny issue: incompetent Florida lawmakers.

(Semi-serious sidebar question: why the heck is FLVA seemingly imitating, if not outright ripping off (as the lawsuit alleges) its struggling competitor and predecessor? If they only used an alternative Florida abbreviation (Fla.), they'd have FlaVA, which as any high school kid will tell you, is a far cooler brand.)

FLVS Owns its Trademarks

The district court kicked the case, finding that FLVS lacked standing to enforce the trademark rights, as it was not the legal owner under Florida law.

But wait, what about FLVS's authorizing statue, which states quite clearly, that FLVS may "acquire, enjoy, use, and dispose of ... trademarks and any licenses and other rights or interests thereunder or therein."

That seems pretty clear, but then again ...

So Does the Florida Justice Department

Here is another clear statute: Fla.Stat. § 286.021. It states that the Florida Department of State is vested with "legal title and every right, interest, claim or demand of any kind in and to any patent, trademark or copyright, or application for the same, now owned or held, or as may hereafter be acquired, owned and held by the state, or any of its boards, commissions or agencies."

The statute also gives the Department of State the explicit power to enforce these given rights.

Heck, Let Florida Sort it Out

The Eleventh Circuit notes that "the right to enjoy and use trademarks would be largely ethereal if Florida VirtualSchool could not protect against infringement." Then again, the State Department's rights are pretty clear, per the statute, and in other agency-authorizing statutes, the right to enforce trademarks is made explicit where appropriate.

Was the omission for FLVS intentional or inadvertent? And how should the court reconcile the conflicting statutes? Instead of dipping its toes into interpretation of novel state law questions, the Eleventh certified a question to the Florida Supreme Court, asking them:

"Does Florida VirtualSchool's statutory authority to "acquire, enjoy, use, and dispose of ... trademarks and any licenses and other rights or interests thereunder or therein" necessarily include the authority to bring suit to protect those trademarks, or is that authority vested only in the Department of State?"

Interestingly enough, the other interested party, the Department of State, was granted leave to file an amicus brief, yet neglected to do so. Let's hope the Florida Supreme Court isn't as lax with its duties.

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