U.S. Appeals Court: Amazon Has To Go To Trial To See If Public Will Confuse Fire TV Streaming With Porn
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.”
No.....but I would have if I'd thought of it.
Heh
Feels like an obvious case where they'd want it branded the "Mass Effect"....
Sure, but as I've discussed recently on this very site, Nintendo is the Disney of the video game industry....
Re: Re: Re:
"There's plenty of reasons why consoles are still better than PCs for a lot of gamers, no matter how hurt your butt is over the fact." I own both gaming rigs AND 2 different consoles and I don't understand this sentiment IN THE LEAST....
Re: Re: Re: Re:
First, wrong author. Second, I was unaware that pointing out a problem also required prescriptive solutions to that problem. I've never encountered this mindset before and can't imagine living in a world so paralyzed by an inability to comment on an issue without providing the detailed fix to it.
Re: Re: Take two abandoned the application, not Hazlelight
To button this up, I looked at the court documents themselves. Hazelight abandoned its original app, as stated in the post.
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Doh, fixed. Thank you!
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"But the continued revisionism of ROMUniverse as some innocent site is silly." Where in the sweet hell did you see THAT? I have a series of post on this very site slamming RomUniverse for being infringing d-bags....
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Yikes, thank you for pointing that out. Either my synapses misfired there or the AI I built to write these posts for me sucks as bad as Facebooks!
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Ew, my fault, and thank you for pointing out the typo. I fixed it.
Re: Regular readers?
See the "likely"? Congrats, you may be an outlier! Or I am be assuming too much :)
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Uh, Yers?
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Whoops, this was me....
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They are/were also a media darling specifically when it came to the reception the company has received in many corners of the corporate finance and trading market world. I can't tell you how full my Twitter account is with knowledgeable folks wondering why people were buying crypto when they could invest in Peloton instead....
Re: Re: How much?
Whoops! Thank you for catching and pointing that out. I will go in and edit it now :)
Re: Previously unreleased correspondence
That was....beautiful. Why are there tears in my eyes?
Re: Re: Hysterical Blatherings
Are you really this stupid? These assholes were nearly within reach of being able to cause wholesale harm to a large swath of the duly elected government. As a side note: "This isn't a big deal, because something like it happened in the days of Andrew Jackson!" is a bold take, in how completely fucking blind and deaf it is.
Re: Re: Re: Re: Hysterical Blatherings
You know what's actually really dope about America, you pathetic dope? Once Michelle Obama became the EX First Lady, she did turn into an ordinary regular every day citizen. She's not the richest of the rich, she isn't the poorest of the poor, she is revered by some, reviled by others, and she gets one fucking vote and nothing more. An every day citizen. I wonder why that isn't something you can grasp?
Re: Wait...
Are familiar with the difference between a law enacted by a state and a business that has its own free speech rights? Yes, of course you are, you're just a trolling idiot....
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I mean, even just the preamble is gold....