FyreTV Porn Service Asks 11th Circuit Panel To Resurrect Dumb Trademark Suit Against Amazon Over FireTV
from the burning-sensation dept
Somehow we missed covering this in 2019, but in those much more innocent times the company behind FyreTV, which bills itself as a service that is "the Netflix of porn", sued Amazon over its Fire TV product. The claim by FyreTV's Wreal LLC ownership was that the public would be confused into thinking that Amazon was somehow behind its pornographic offerings, or that some affiliation between the two entities was in place. The claims rested on exactly what you'd expect, essentially that the two product names are phonetically identical and that both involve providing video-based entertainment. That the types of that entertainment are as wildly different as could possibly be apparently didn't concern Wreal LLC. Instead, they came to court with a couple of social media posts essentially poking fun at the similar names as though it were some kind of proof of confusion.
The court tossed the lawsuit in 2019, but Wreal LLC has now asked an 11th circuit panel to bring the suit back to life. To revive the suit, lawyers for Wreal LLC provided literally nothing new in its claims.
An attorney for Wreal told a three-judge panel of the Atlanta-based appeals court Thursday morning that the potential for consumer confusion was obvious: “One just needs to hear the words ‘Fire TV.’ They sound exactly the same,” Carlos Nunez-Vivas of Waserstein & Nunez said.
According to FyreTV, Amazon throwing its name on Fire TV actually made the confusion worse instead of the opposite. The FyreTV argument for this is, apparently, that Amazon has a strong brand. And from there, the attorney argued that, hey, maybe someday FyreTV would like to get into non-pornographic content.
“They’re saturating the market. They’re spending eye-popping numbers in advertising,” he said, referring to Amazon. “Let’s say Wreal would’ve liked to go into mainstream content. Well, they’re going to have a difficult time doing that when there’s a mammoth company that is controlling that market and associating the mark with its own name.”
Which is all apropos of nothing, unfortunately. The fact is that the two products don't compete with one another, aren't offered in the same places for purchase, and anyone who tries to look into a FyreTV service is going to be so bombarded with pornographic material that they aren't going to be able to be under any kind of assumption that this is somehow an Amazon product.
The "undisputed facts" listed in the original ruling pretty much lay out all you need to know. Some highlights are below.
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.
And it goes on from there. Nothing about this suit made sense in the beginning as anything other than a money-grab. To revive it now when a court recognized it for what it was would make even less sense.
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Filed Under: 11th circuit, fire tv, fyre, fyretv, porn, streaming, trademark
Companies: amazon, fyretv, wreal llc
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'... it's different when we do it.'
“They’re saturating the market. They’re spending eye-popping numbers in advertising,” he said, referring to Amazon. “Let’s say Wreal would’ve liked to go into mainstream content. Well, they’re going to have a difficult time doing that when there’s a mammoth company that is controlling that market and associating the mark with its own name.”
...
Wreal does not believe its use of the “Netflix” mark infringes any trademarks because it believes Netflix operates in a different market.
Ah hypocritical porn-mongers... on one hand they argue that they're not in the same market as non-porn services so using another company's name to describe themselves isn't a trademark violation, yet at the same time they want to argue that Amazon's product, which is not in the same market as theirs should nonetheless count as a trademark violation because the names sound similar, and because they might want to get into the non-porn market at some point.
If a judge doesn't laugh this one out of court I'll be extremely surprised, as it's a complete and utter joke.
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Missed the target
I would think FyreTV would have a better case against Fyre Festival, TBH.
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And here I thought Amazon had expanded into porn (why not, they're into everything else!) and just didn't know how to spell Fyre. I guess that explains why I could never find the porn channel on my Fire TV.
/s (in case Wreal thinks I'm really as stupid as they want me to be)(oh, and /s means sarcasm off in case Wreal is as stupid (and greedy!) as I think they are)
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So basically…
Is this The Return of the Son of Perfect 10?
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How it comes to be
The "Fire TV" brand used by Amazon has nothing to do with this porn service but instead an evolution of their product lines.
First came the Amazon Kindle, an E-reader based on an E-ink display.
Next came the Kindle Fire series, a series of Android-based tablet computers with full-color displays and a form factor similar to their E-readers, and of course fully capable of reading Kindle E-books. The original Kindle devices got branded as Kindle Paperwhite to denote their paper-like appearance and readability.
Finally comes the Fire TV, an Android-based TV device based on the same technology as the Kindle Fire, however dropping the Kindle name as it isn't an E-reader anymore and adding TV to designate the fact that it is intended to connect to a TV set.
Going by this, you can see how naturally the "Fire TV" brand evolved from a series of device form factors from E-reader to tablet to TV box/stick.
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Re: How it comes to be
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Totally missed the issue
FyreTV had the name first, registered their trademark, and used it to provide streaming video content.
Everyone knows the content isn't the same. They aren't competitors, but trademark law doesn't require that.
Especially when a big company like Amazon can throw hundreds of millions of dollars associating the (stolen) name with Amazon's brand.
They are similar enough that people who associate Fire TV with Amazon, if they come across FyreTV (and let's be honest, people watch porn!) - there's a likelihood that they'll believe Amazon is the source.
Or, worse, that FyreTV is ripping off Amazon's name.
The comments do not understand the law at all. This lawsuit will be revived.
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