U.S. Appeals Court: Amazon Has To Go To Trial To See If Public Will Confuse Fire TV Streaming With Porn
from the fyred-up dept
Sigh, here we go. Back in 2014, Wreal LLC filed a trademark infringement suit against Amazon. Why? Well, Wreal has a product called FyreTV that it describes as “the Netflix of porn.” Amazon has a streaming service for decidedly non-pornographic content called Fire TV. Wreal came into court armed with a couple of social media posts basically poking fun at the two names and tried to paint that as real or potential confusion in the marketplace. The case has gone through many twists and turns over the past 8 years, including the district court tossing the suit in 2019 because of the stark differences in the products and types of services being offered. From there, Wreal appealed.
Notably, there was a list of “undisputed facts” in the ruling that pretty much lay out everything anyone should need to know about all of this:
Wreal has lost money every year from its founding in 2007 to the present.
Wreal’s FyreTV.com homepage shows several rows of highly explicit pornographic images.
Amazon markets the Amazon Fire TV’s family-friendly features, advertising that the “FreeTime” service “revolutionizes parental controls – parents can choose what your kids see and set time limits for types of content and times of day.”
Wreal does not believe its use of the “Netflix” mark infringes any trademarks because it believes Netflix operates in a different market.
That last one is perhaps the most important, because if Wreal’s use of Netflix doesn’t infringe on Netflix’s trademark because they operate in different markets, then the exact same thing is true of Amazon’s Fire TV. Yet, somehow, the U.S. Appeals Court has granted Wreal its trial.
The 11th U.S. Circuit Court of Appeals said a jury could find that Amazon’s product was likely to cause consumer confusion with Wreal’s porn-streaming service, and that a Miami federal judge should not have ruled for Amazon before a jury could hear the case.
A unanimous three-judge panel noted that the products’ names were nearly identical, there was evidence that Amazon had purposely flooded the market with its trademark to drown Wreal’s out, and a reasonable consumer could think that Amazon had expanded into Wreal’s field of streaming hardcore pornography.
The panel noted, perhaps more cogently, that this was treated by the lower court more like a traditional “likelihood of confusion” case, in which the later entrant is trying to draft off the name recognition of the larger original trademark holder. But that this case was different — in that it was a “reverse confusion” case, in which the latter entrant is much bigger and more well known, and clearly isn’t trying to leverage the mark’s recognition, but rather to squeeze the original mark holder out of the market. As the Court notes in its ruling:
In a reverse-confusion case, the harms that can occur are varied. For example, consumers may come to believe the smaller, senior user of the mark is itself a trademark infringer
As such, the Court argues, different tests should apply for the likelihood of confusion.
But the other reasons for granting this trial on appeal are just plain silly. Going to FyreTV is going to bombard you with porn on its homepage. Someone would have to very much believe that Amazon had suddenly expanded into the extremely hardcore pornography industry for there to be any sort of confusion. The Appeals Court indicates that a jury may find that way. I would fear for any jury that did so, as I’d would openly wonder how that jury managed to tie its shoes in the morning.
But now this goes to trial (assuming no settlement in the interim). And hopefully a jury will show that there is no way that there is any likelihood of confusion, even “reverse confusion.”
Filed Under: 11th circuit, fyretv, likelihood of confusion, porn, reverse confusion, streaming, trademark
Companies: amazon, wreal
Comments on “U.S. Appeals Court: Amazon Has To Go To Trial To See If Public Will Confuse Fire TV Streaming With Porn”
'I was looking for shrimp recipes, I have no idea how I got that...'
Unless the jury is comprised entirely of teenagers and/or befuddled married people who have no idea how that sort of stuff ended up on the tv/computer, honest, I really don’t see the argument for customer confusion working out well if it goes before a jury, so hopefully this gets the treatment it deserves and gets laughed out of court again.
Wreal has lost money every year from its founding in 2007 to the present.
That’s all I need to know. Completely explains why Wreal brought this suit.
Re:
because there is NO WHERE online to find porn that doesn’t involve them…
Re: Re:
I was thinking more along the lines of: “We’ve been losing money annually for fifteen years now. How do we get a cash injection to sustain production of our product? I know, lawsuit!”
Re: Re: Re: 'This was supposed to be a quick payout, not a prolonged fight!'
They have got to be seriously annoyed that even after years Amazon hasn’t thrown any ‘Go Away’ money at them and instead is fighting back in court.
Re: Re: Re:2
Understatement of the century thus far, methinks.
Show of hands, who thinks some of the Judges just wanted to have porn submitted to them, for free, to fill out a boring day?
The courts use of ‘reverse-confusion’ is confusing.
Is this an actual term (defined elsewhere), or did the panel lose their minds?
Re:
Reverse Passing-off has been a thing for over 20 years, so it’s no giant leap to reverse confusion.
Re: Re:
33 years, actually.
“Nearly identical” …on the Internet? Being close… counts just like in horseshoes? Judges are wreally stoopid, ain’t dey.
Amazon sells porn...
But Amazon DOES sell porn. Go to their site and do a search for ‘xxx’ and you’ll find plenty. So maybe someone hasn’t used Amazon for video before except to order some porn, because that’s less embarrassing that buying it in person; or maybe they read a lot of erotica on their Kindle…no reason they wouldn’t expect Amazon to reccomend porn to them for streaming video too. Seems like that’s the only market Amazon is in where they DON’T sell porn. Why would anyone assume that to be the case if they don’t have experience with it yet?
I do agree that they’re kinda shooting themselves in the foot by saying Netflix is in a different market though. And I don’t see why they need to. Store brand Ibuprofin always says “Compare to Advil!” and they’re clearly in the same market…how is “the Netflix of porn” any different?
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I do agree that they’re kinda shooting themselves in the foot by saying Netflix is in a different market, though.
Let me know when Netflix becomes a general retailer with its own delivery service and not just an online broadcaster.
Lmao
So a company fails to compete in every way with the ‘real’ Netflix of porn, adult dvd empire, thus slaps Amazon and try’s to pee on its leg.
🤦♂️
Come on Baby Light my Fyre...
Considering that FyreTV has supposedly never turned a profit, Amazon could probably get out of this whole suit more cheaply by buying them out and shutting the service down.
Re:
Yeah, but winning this lawsuit and bankrupting the troublemakers by doing so has got to be so much more satisfying. 😄
I mean, it’s the 11th Circuit. The home turf of Florida Man. I’d be plenty concerned.
And if all that wasn’t bad enough, their Circuit Justice is Clarence Thomas.
Next up, suing Netflix itself for that documentary on the Fyre Festival. And suing those Fyre Festival guys too.
Just looking for exposure
I had never heard of FyreTV until I read this. And I watch a lot of porn. Uh, I mean, I look it up a lot for a friend. But I I mean he never associated porn with Amazon.