In Florida Virtual School v. K12, Inc. (SC13-1934), the Florida Supreme Court held that the Florida Virtual School (“FVS”) has standing to sue to enforce its trademark even though the Florida Statutes provide that the trademark is owned by the Department of State.

As background, FVS is an online high school that was established pursuant to statute in 1997, and was made an agency of the state in 2000. Section 1002.37, Fla. Stat. It has an online presence at flvs.net, and was using the marks “FLVS” and “FLORIDA VIRTUALSCHOOL” since 2002. In 2011, FVS sued K12, alleging that K12’s use of the names “Florida Virtual Academy” and “FLVA” and its diverting customers to its website through flvs.com constituted trademark infringement under the federal Lanham Act, 15 U.S.C. s. 1051, et seq., and violated Florida common law.

In defense, K12 asserted that FVS did not have standing to bring an action to enforce trademark rights as because statutes provide that ownership of all trademarks acquired by the school would vest in the state, s. 1002.37(2)(c), Fla. Stat., and more specifically that all trademarks held by the state are held by the Department of State pursuant to s. 286.021, Fla. Stat. Accordingly, K12 argued that only the Department of State could bring an action to defend any interest in a trademark held by FVS. The federal district court dismissed the suit. The dismissal was appealed to the 11th Circuit Court of Appeal, which referred the standing question to the Florida Supreme Court.

The Supreme Court unanimously rejected the arguments of K12, and heldthat FVS did have the authority to enforce its trademark rights. The Court noted that a statutorily-created entity does not have any inherent power. However, statutes pertaining to FVS established a board of trustees over it as a body corporate with all powers of such a body, authorized it to acquire, enjoy, and use trademarks, and charged it with aggressively seeking avenues to generate revenue to support its future endeavors. The Court concluded that a corporate body has broad authority to file suit in its corporate name, and the ability to enforce trademarks was crucial to the ability of FVS to function effectively. The Court concluded that “where intellectual property rights have been granted to a State agency by statute, such as the Florida Virtual School, its ability to exercise those rights would be meaningless if the agency holding those rights could not also protect the intellectual property from infringement.”