ATLANTA—The years-long case brought by Miami-based Wreal LLC against Amazon accusing the latter of violating its trademark on the name FyreTV with the brand name of the retail monolith's own streaming device, Fire TV, may proceed to a jury trial, the 11th U.S. Circuit of Appeals found Tuesday.
The case, first filed all the way back in 2014, moved to the 11th Circuit Court over a year ago, in February 2021, following a 2019 ruling in Amazon's favor by U.S. District Judge Joan Lenard. Reuters reports that a unanimous three-judge panel at the appeals court noted in their ruling 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 customer could think that Amazon had expanded into Wreal's field of streaming hardcore pornography."
Wreal introduced its FyreTV set-top streaming device to the market in 2007, a full seven years before the release of Amazon's first-generation Fire TV. Wreal's device was marketed from the beginning as expressly intended for streaming adult content (the company later launched an updated device dubbed the FyreBoXXX), with promotional efforts positioning it—albeit like many others have done with their own streaming offerings over the years—as a "Netflix of porn."
The 11th Circuit panel further concluded Tuesday, according to Reuters' report, that Judge Lenard "erred" in her 2019 ruling "by treating the case as a normal trademark-infringement dispute, where a smaller user trades on the fame of an existing trademark. Instead it was a 'reverse confusion' case, which requires a different analysis."
Further complicating matters could be the fact that both hardcore and softcore content can be accessed using an Amazon Fire TV device. Adult production companies including Adult Time and Bang!, for instance, offer apps that can be "side-loaded" onto a Fire TV box or stick to easily stream their triple-X libraries to a television set.
Courthouse News Service reports that U.S. Circuit Judge Barbara Logoa, who wrote Tuesday's ruling on behalf of the panel, pointed out in the decision that "Amazon already offers at least some softcore pornography on its streaming services and competes with other general-interest set-top boxes that offer hardcore pornography content on theirs, including the FyreTV streaming service at issue here. Amazon also sells hardcore pornographic materials on its website. It would not be unreasonable for a reasonable consumer to see FyreTV and think Amazon was the source."
The case now heads back to federal court in Miami for trial.
