ATLANTA, Ga. — The 11th U.S. Circuit Court of Appeals ruled yesterday that a case against Amazon over its Fire TV product, brought by adult streaming company Wreal, which owns the “FyreTV” trademark, can move forward.
The three-judge panel's opinion, published yesterday, “overturned a Florida federal judge's decision granting summary judgment in Amazon's favor in a lawsuit brought by Wreal LLC, which alleged that the name of Amazon's Fire TV would likely cause consumers to confuse it with Wreal's FyreTV service,” legal news site Law360 reported.
Wreal, whose claims to the “FyreTV” trademark date back to 2007, sued Amazon in 2014 when the conglomerate launched its Fire TV streaming service.
In May 2019, Law360 noted, U.S. Magistrate Judge Jonathan Goodman “recommended granting Amazon summary judgment after finding little chance that consumers would confuse a normal streaming device with an app dedicated to hardcore pornography.”
Later, U.S. District Judge Joan A. Lenard ruled in favor of the larger company; this was the ruling that was reversed yesterday.
The panel defined the situation as a "reverse-confusion" case.
"In reverse-confusion cases, the plaintiff is usually a commercially smaller, but more senior, user of the mark at issue," the appellate judges explained. "The defendant tends to be a commercially larger, but more junior, user of the mark."
Although the lower court “had found that consumers were unlikely to confuse the two marks,” the appellate judges ruled that the district judge “should have analyzed whether Amazon's Fire TV mark could cause a consumer to associate FyreTV with Amazon,” Law360 reported.
"Because both the harm and the theory of infringement in a reverse-confusion case differ from what is claimed in a forward-confusion case, the analysis and application of the seven likelihood-of-confusion factors differ as well," the opinion held.
Of note for adult industry observers, the panel also found that “although Amazon's product does not broadcast hardcore pornography, it does have apps for Showtime and HBO Go, both of which broadcast softcore pornography as part of their after-hours programming,” Law360 explained, adding that “hardcore pornographic DVDs are also available for purchase on Amazon.com.”
Law360 also reported that the panel held that it would “not be unreasonable for a consumer to ‘see FyreTV and think Amazon was the source.’”
The case is Wreal LLC v. Amazon.com Inc., case number 19-13285, in the U.S. Court of Appeals for the Eleventh Circuit.
