ATLANTA, Ga. — Amazon and FyreTV owner Wreal are reportedly finalizing a confidential settlement of the trademark infringement lawsuit that the adult streaming service originally brought against the online retail giant in 2014.
The settlement was first reported by Bloomberg Law earlier this month.
Wreal’s original complaint alleged that consumers could mistake Amazon’s Fire TV for its own adult FyreTV service, trademarked in 2007.
As XBIZ reported, in June 2022 the 11th U.S. Circuit Court of Appeals ruled that the case against Amazon could move forward. The appellate court’s opinion overturned a Florida federal judge’s decision, which had granted summary judgment in Amazon’s favor.
Another judge had issued an even earlier decision finding “little chance that consumers would confuse a normal streaming device with an app dedicated to hardcore pornography,” Law360 reported.
The 11th Circuit instead considered 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 not likely to confuse the two trademarks, 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.
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.”
The panel held that it would therefore “not be unreasonable” for a consumer to think Amazon was behind FyreTV.
When Amazon initially released Fire TV, a Fortune report on the current settlement negotiations explained, “customers who went to firetv.com likely received a shock” because FyreTV “had acquired that domain three years earlier, apparently expecting people to misspell its name. Subscribers were able to stream explicit XXX content directly to their TVs via Roku and other third party set-top boxes at the time.”
Since 2014, Amazon has shipped more than 200 million Fire TV devices, Fortune reports.
