1. Introduction

This appeal arises from a long-running trademark conflict between two competitors in online education. Florida Virtual School (“Florida Virtual”), a state-created online public school, owns registered marks for “Florida Virtual School” and “FLVS.” K12, Inc. and K12 Florida, LLC (“K12”) later operated Florida programs under names Florida Virtual alleged were confusingly similar, prompting a 2011 infringement suit that ended in a settlement agreement requiring K12 to abandon certain “Prohibited Marks” and adopt “Approved Marks.”

The dispute reignited when K12 launched a Hendry County School District program named “Florida Online School” (“FLOS”). Florida Virtual sued for trademark infringement and also asserted unfair competition, false advertising (based on a comparative checklist on K12’s website), and breach of the settlement agreement. After discovery, the district court (i) granted summary judgment to K12 on false advertising, unfair competition, and breach of contract; (ii) excluded Florida Virtual’s two experts (survey and damages) in relevant respects; (iii) entered summary judgment against Florida Virtual on actual damages for infringement; and (iv) denied Florida Virtual’s jury demand, leaving only equitable remedies (injunction and disgorgement). Following a bench trial on likelihood of confusion, the court found no infringement. Florida Virtual appealed across these rulings.

The Eleventh Circuit affirmed, emphasizing (a) the strict non-speculation requirement for proving “actual damages” in trademark infringement, (b) the reliability requirements for surveys and damages models, (c) the distinction between literal falsity and misleadingness in false advertising, and (d) deference to bench-trial findings on likelihood of confusion under clear-error review.

2. Summary of the Opinion

• Jury trial / actual damages: Florida Virtual was not entitled to a jury trial because, once its claim for actual damages failed on summary judgment, the only remaining remedies were equitable (disgorgement and injunction). Florida Virtual presented no non-speculative evidence that it suffered “actual damages.”
• Expert exclusions: The district court did not abuse its discretion excluding the damages expert’s lost-profits opinion as speculative and unhelpful, and excluding the survey expert’s false-advertising survey as unreliable because it presented the checklist “out of context.”
• False advertising: The checklist was not literally false because it was “susceptible to more than one reasonable interpretation,” and Florida Virtual failed to show it was misleading with reliable evidence of consumer deception.
• Trademark infringement: After a bench trial, the district court did not clearly err in finding no likelihood of confusion. It reasonably found Florida Virtual’s marks commercially weak in a “crowded field,” and found no “credible evidence of actual confusion,” two factors treated as especially important.

3. Analysis

3.1 Precedents Cited

A. Standards of review and procedural posture

• Nehme v. Fla. Int'l Univ. Bd. of Trs. (de novo summary-judgment review): framed how the panel viewed the record at the summary-judgment stage, including the damages and false-advertising dispositions.
• Hard Candy, LLC v. Anastasia Beverly Hills, Inc. (jury trial and post-bench-trial review): supplied two central pillars. First, it reaffirmed that disgorgement and injunctive relief are “equitable in nature” and therefore do not carry a jury right, anchoring the jury-demand analysis. Second, it provided the clear-error lens for reviewing likelihood-of-confusion findings after a bench trial and cautioned that missteps on a subsidiary factor do not compel reversal.
• Chapman v. Procter & Gamble Distrib., LLC (abuse-of-discretion review of expert exclusions): reinforced deference to the district court’s gatekeeping calls.

B. Trademark “actual damages” must be non-speculative

• Babbit Elecs., Inc. v. Dynascan Corp. and Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc.: used to restate that money damages for infringement require proof of “actual damages,” not mere infringement.
• Hard Candy, LLC v. Anastasia Beverly Hills, Inc. and St. Charles Mfg. Co. v. Mercer: supplied the “primary limiting principle” that damages cannot be “speculative” and must be demonstrated “with specificity,” showing that injury “actually occurred.” This principle was decisive: Florida Virtual’s evidence showed confusion events but not measurable injury (e.g., student diversion or lost revenue attributable to confusion).

C. Expert reliability gatekeeping (Daubert/Kumho) applied to trademark damages

• Daubert v. Merrell Dow Pharms., Inc.: invoked to emphasize the court’s gatekeeping duty to ensure expert testimony rests on a “reliable foundation.”
• Kumho Tire Co. v. Carmichael: supported the district court’s “considerable leeway” in assessing reliability, including methodology and assumptions.
• Buland v. NCL (Bahamas) Ltd.: supplied the key rule that “any step” rendering an analysis unreliable makes the testimony inadmissible; the panel applied this to the damages expert’s “every K12 student would have enrolled in Florida Virtual” assumption.

D. False advertising: literal falsity vs. misleadingness and the need for reliable deception evidence

• Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc.: provided the basic element that an ad must be “false or misleading,” and the important procedural consequence: if literally false, deception evidence is unnecessary; if misleading, the plaintiff must prove consumer deception.
• Hickson Corp. v. N. Crossarm Co.: reinforced that when an ad is misleading (not literally false), plaintiffs must provide deception proof (surveys, market research, expert testimony, or other evidence).
• Osmose, Inc. v. Viance, LLC: controlled the literal-falsity analysis by stating that an advertisement cannot be literally false if it is “susceptible to more than one reasonable interpretation.” This enabled the court to treat K12’s checklist as potentially invitational (“do your own comparison”) rather than an affirmative representation about competitors’ features.

E. Likelihood of confusion framework and factor weighting

• FCOA LLC v. Foremost Title & Escrow Servs. LLC: stated the two elements of infringement (valid priority marks + likelihood of confusion) and supplied detailed guidance on “conceptual” versus “commercial” strength, including rebutting presumptive strength of incontestable descriptive marks through evidence of commercial weakness.
• Fla. Int'l Univ. Bd. of Trs. v. Fla. Nat'l Univ., Inc.: provided the seven-factor test and key glosses: third-party use weakens a mark; the “key question” in advertising-media similarity is whether ads reach the same audience; actual confusion evidence varies in weight; and consumer sophistication can reduce confusion likelihood.
• Wreal, LLC v. Amazon.com, Inc.: reiterated that actual confusion is “the best evidence” of likelihood of confusion, heightening the importance of the district court’s finding that Florida Virtual lacked “credible” actual confusion evidence.
• PlayNation Play Sys., Inc. v. Velex Corp.: constrained the use of “lack of survey evidence,” clarifying it should not weigh against plaintiffs; the panel read the district court as using the absence of a survey not as a penalty but as a reason it could not “filter out” background marketplace confusion.
• Anderson v. City of Bessemer City: supported deference to permissible factfinding choices in bench trials when two views of evidence exist—central to affirming the district court’s evaluation of parent testimony and confusion emails.
• Lyons P'ship v. Morris Costumes, Inc.: addressed Florida Virtual’s argument that the district court improperly discounted admitted evidence as “unreliable.” The panel distinguished Lyons: the district court here did not disregard evidence as hearsay; it weighed it and found it unpersuasive.
• Petrella v. Metro-Goldwyn-Mayer, Inc.: cited only to note partial abrogation of Lyons on unrelated grounds, underscoring that Lyons offered no help on the specific evidentiary-weight point.

3.2 Legal Reasoning

A. Why the jury demand failed: remedies determine the jury right, and “actual damages” were unsupported

The panel treated the jury demand as derivative of Florida Virtual’s ability to pursue legal (non-equitable) relief. Under Hard Candy, LLC v. Anastasia Beverly Hills, Inc., disgorgement and injunction are equitable. Thus, Florida Virtual needed a triable claim for “actual damages” to secure a jury trial.

The court then applied the Eleventh Circuit’s non-speculation requirement. Florida Virtual offered (i) a parent who briefly enrolled in the wrong program but withdrew and ultimately chose brick-and-mortar schooling; (ii) various emails and incidents reflecting confusion; and (iii) an expert lost-profits model premised on 100% diversion from K12 to Florida Virtual absent confusion. None established a concrete, specific injury attributable to K12’s challenged mark. Confusion, without proof of diversion or other monetizable harm, did not satisfy “actual damages.”

B. Why the damages expert was excluded: an unsupported “but-for all customers” assumption rendered the model unreliable

The opinion’s damages analysis is an archetypal Daubert application. The court did not dispute the expert’s qualifications; it rejected the reliability of the key assumption. By assuming every Florida Online School student would have attended Florida Virtual, the expert supplied the missing causal link (diversion) by fiat. Under Buland v. NCL (Bahamas) Ltd., an unreliable step contaminates the whole analysis. The panel also agreed the calculation largely amounted to “simple math” without specialized expertise, further reducing “helpfulness” under Rule 702.

C. Why the false advertising claim failed: no literal falsity and no reliable evidence of misleadingness

The checklist presented features with checked boxes under “K12-Powered Schools” and unchecked boxes under “Other Online Learning Solutions.” Florida Virtual argued this conveyed that competitors (including Florida Virtual) lacked those features.

The panel affirmed two separate determinations:

• No literal falsity: Under Osmose, Inc. v. Viance, LLC, if a statement is susceptible to more than one reasonable interpretation, it cannot be literally false. The panel accepted that the checklist could reasonably be read as an invitation for consumers to do their own comparison rather than a definitive assertion about competitors.
• No reliable misleadingness proof: Because the claim was (at most) “misleading,” Florida Virtual needed reliable deception evidence per Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc. and Hickson Corp. v. N. Crossarm Co.. Its survey found ~18% deception but was deemed unreliable because it presented the checklist “out of context” and did not allow respondents to review competitor offerings—despite the checklist’s stated purpose to “weigh options” among providers.

D. Why infringement failed after trial: deference plus weakness/actual-confusion findings carried the day

Applying the seven-factor test from Fla. Int'l Univ. Bd. of Trs. v. Fla. Nat'l Univ., Inc. and the emphasis in FCOA LLC v. Foremost Title & Escrow Servs. LLC that “strength of the mark” and “actual confusion” are the two most important factors, the panel affirmed the district court’s “no likelihood of confusion” finding under clear-error review.

Two aspects were particularly influential:

• Commercial weakness in a crowded field: Even assuming descriptive marks with incontestability begin “relatively strong,” K12 rebutted with evidence of limited recognition and extensive third-party “Virtual School” usage by Florida districts. The panel accepted the district court’s view that similar third-party naming can dilute a mark’s source-identifying power.
• Actual confusion evidence discounted as low-weight or not causally tied to the mark: Parent testimony and emails were acknowledged but found not to be “credible” or substantial proof that similarity in marks caused actionable confusion. For example, one parent’s confusion was attributed to a belief that only one online provider existed, rather than to similarity between “Florida Virtual School” and “Florida Online School.” Under Anderson v. City of Bessemer City, that factfinding choice was permissible.

3.3 Impact

Although nonprecedential, the decision is a practical roadmap for Lanham Act litigants in the Eleventh Circuit—especially in disputes over descriptive, geographically anchored marks in “crowded fields” (here, Florida K–12 online education). Likely effects include:

• Damages discipline: Plaintiffs seeking money damages must prove diversion or another quantifiable injury with specificity. Evidence of confusion incidents (emails, mistaken inquiries) may support liability, but standing alone is unlikely to sustain an “actual damages” claim or survive Daubert scrutiny.
• Jury-trial leverage reduced when damages proof is weak: Defendants may strategically target damages evidence and experts, since removing legal damages can convert the case to equitable-only remedies and a bench trial under Hard Candy, LLC v. Anastasia Beverly Hills, Inc..
• Survey design and context sensitivity: False-advertising and confusion surveys must replicate marketplace context and permit respondents to do what the advertisement asks them to do (e.g., compare options). Surveys that isolate a stimulus from its context risk exclusion.
• Crowded-field reality: Where many actors use similar descriptive naming conventions, courts may treat small distinctions (logos, context, customer sophistication, purchasing channels) as more salient and may view the plaintiff’s mark as commercially weak notwithstanding registration.

4. Complex Concepts Simplified

• “Actual damages” (trademark): Real, provable monetary harm caused by infringement—such as lost sales, lost goodwill with a measurable financial impact, or corrective advertising expenses. “People were confused” is not automatically “we lost money.”
• Equitable vs. legal remedies: Legal remedies typically mean money damages (often tied to a jury right). Equitable remedies include injunctions (court orders to stop using a mark) and disgorgement (turning over profits as a fairness measure), usually decided by a judge.
• Daubert/Kumho “gatekeeping”: Before an expert can testify, the judge must ensure the opinion is based on reliable methods and sound assumptions. If a crucial assumption is unsupported (e.g., “all the defendant’s customers would have been ours”), the opinion can be excluded.
• Literal falsity vs. misleading advertising: “Literally false” means the ad is false on its face; the plaintiff need not prove consumers were deceived. “Misleading” means the ad could confuse consumers even if not outright false; the plaintiff must prove actual deception, often with a reliable survey.
• Likelihood of confusion factors: Courts weigh multiple considerations to decide whether consumers will mistakenly think two offerings come from the same source. The “strength of the mark” (how uniquely it identifies one source) and “actual confusion” (real-world proof) often matter most.
• Clear error (bench trial review): On appeal, factual findings are not re-tried. If the trial judge’s view of the evidence is plausible, the appellate court will not reverse even if it might have weighed evidence differently.

5. Conclusion

Florida Virtual School v. K12, Inc. illustrates the difference between proving confusion and proving compensable harm. The Eleventh Circuit affirmed that (i) trademark “actual damages” must be non-speculative and supported by evidence tying confusion to concrete injury; (ii) experts cannot bridge missing causal links with unsupported assumptions; (iii) comparative advertising claims hinge on whether the message is literally false or merely misleading—and misleading claims require reliable deception evidence; and (iv) in crowded, descriptive naming environments, the commercial weakness of a mark and the absence of credible actual confusion can defeat infringement, particularly under deferential clear-error review after a bench trial.