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."