Earlier this month, Florida International University, known around these parts as FIU, filed a lawsuit against upstart Florida National University, or FNU, in the Southern District of Florida. The predicate for the lawsuit is pretty simple: FIU claims that the school’s use of the names Florida National University and FNU amount to trademark infringement and unfair competition. In my view, the case is not particularly compelling.
First, let’s look at the legal standard at play. In trademark disputes, and in unfair competition cases, a court is going to look at the likelihood of confusion. Generally, the likelihood of confusion is evaluated according to an eight factor test. Rather than go through each one of those factors individually, let’s make the reasonable assumption that certain of the factors are satisfied: the schools are both in the same industry and in the same geographic location. The names have a similar overall look and feel. In the end, the dispute probably comes down to the following: (1) How strong is FIU’s mark (2) What is the risk of consumer confusion.
Strength of the mark is all about brand recognition and distinctiveness. For example: Lexus. Abercrombie & Fitch. Rolex. Starbucks. These are very distinct names with very high brand recognition. But Florida International University and the acronym FIU? The full name contains two words – Florida and University – that are extremely common. We have the University of Florida, clearly the state’s flagship institution, along with Florida State University, the other major player. These are arguably the two most well-known schools that contain the word Florida in their names. Once we get past the two big names, we have a litany of other schools that contain the words Florida and University. For instance, we have the University of South Florida, the University of Central Florida, the University of West Florida, the University of North Florida, Florida Gulf Coast University, Florida Atlantic University, and Florida A&M University, among others. Given that many institutions tend to have similar types of names, the name Florida International University lacks the sort of distinctiveness and brand recognition of, say, a Lexus or a Starbucks. The name does not stand alone. Rather, it is part of a crowded field occupied by other, relatively similar university names.
Obviously, FIU would argue that the foregoing analysis is too superficial, and that it fails to consider the similarity between “international” and “national”, and the similar structure of the marks. After all, “Florida International University” sounds nothing like “Florida Gulf Coast University”, but it does sound sort of like “Florida National University.” It’s a fair point, but one that misses the broader considerations at issue. When someone says Florida International University, even in South Florida, the reaction is not, “Yes, exactly, FIU! Florida International University! Home of Roary the Panther! Remember when they beat the University of Toledo in the 2010 Little Ceaser’s Pizza bowl game! That was awesome!” There are many people in South Florida who are not particularly familiar with Florida International University. There are many people who, upon hearing the name, would simply conclude that it is one of many Florida colleges or universities that (shockingly) has given itself an appropriate sounding name.
Turning to the issue of confusion, I remain a bit skeptical. FIU has a very large student body— more than 50,000. There are tens of thousands of FIU alumni in South Florida. The people who know FIU know FIU and are unlikely to confuse it with Florida National University. But let’s look at consumers. Consumers, in this context, would be college students or potential college students. I find it hard to believe that a high school senior who is considering college options would confuse Florida International University, a reputable, well-regarded academic institution, with Florida National University. Just look at their respective websites for crying out loud. FIU is obviously a real university. FNU’s website makes it look… well…. pretty suspect.
Then again, maybe I am focused on the wrong demographic. Maybe there really are people out there who know about FIU, and signed up for online classes at FNU thinking that they were really attending the former. I could imagine some poor kid down in Hialeah signing up for online classes at FNU and telling his mom, “Yeah, FNU. They have lots of alumni down here. It’s a good school.”
It’s a bit of a stretch, but I think the case is at least plausible. That means it’s not getting dismissed. Once it clears that hurdle, there’s summary judgment. But all of these issues appear to present disputed questions of fact. It’s tough to guess where this one goes.
The case is Florida International University Board of Trustees v. Florida National University, Inc., 13 CV 21604 (S.D. Fla. May 3, 2013).
Jonathan Pollard is a trial lawyer and business litigation attorney based in Fort Lauderdale, Florida. He focuses his practice on non-compete, trademark and trade secret disputes. He represents clients in Miami, Fort Lauderdale, West Palm Beach, Fort Myers, Tampa, Orlando and Jacksonville. His office can be reached at 954-332-2380.