Porn Company Asks 11th Circuit for New Shot at Trademark Suit Against Amazon

The owner of FyreTV, the so-called “Netflix of porn,” says Amazon’s Fire TV infringes on its trademark and confuses customers.

An Amazon Fire TV system is seen at a retail store in Canada. (Photo by Raysonho from Wikipedia Commons via Courthouse News)

ATLANTA (CN) — The owner of porn streaming service FyreTV asked an 11th Circuit panel Thursday to revive a trademark lawsuit claiming consumers could confuse the platform with Amazon’s Fire TV service. 

A Florida federal judge tossed out Wreal LLC’s lawsuit in 2019, finding that it was unlikely consumers would mistake FyreTV, a pay-per-view hardcore porn streaming service that markets itself as “the Netflix of porn,” for Amazon’s Fire TV set-top box. 

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. 

Wreal sued Amazon in 2014 based on a reverse-confusion theory of trademark infringement, claiming that consumers could mistakenly believe that Amazon is the source, affiliate, or sponsor of FyreTV due to Amazon’s use of the Fire TV mark. 

Nunez-Vivas argued that Amazon’s use of its “house mark,” a trademark used to identify a service provider, next to the Fire TV mark aggravated the likelihood of confusion due to the strength of the Amazon brand. 

The attorney said his client was also concerned that consumer confusion could limit FyreTV’s future potential. 

“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.” 

He added, “If Amazon eventually destroys the brand for some reason, if the Amazon name doesn’t become a good name, then it tarnishes the brand. It tarnishes the mark that is being protected.” 

But Drew Hansen of Susman Godfrey, an attorney for Amazon, argued that Wreal failed to show that “an appreciable number of ordinarily prudent purchasers” were likely to be confused between the two services. 

Noting that at least one customer called Amazon to find out whether FyreTV could be accessed from Amazon’s Fire TV and another tweeted to ask whether Wreal merged with Amazon, U.S. Circuit Judge Barbara Lagoa questioned whether that was the appropriate standard on which to judge the case. 

“The Ninth Circuit has suggested that evidence of actual confusion – any evidence – is enough to escape summary judgment. [Wreal] showed some evidence of actual confusion. So why is that not enough?” asked Lagoa, a Donald Trump appointee.  

Hansen replied that “a couple instances of actual confusion” could be looked upon as “isolated instances.” 

“The people who are writing in clearly know there’s a difference between the Amazon thing and the FyreTV thing and they’re making remarks about that,” he said. “There is no indication that the [consumers] think that Amazon is the source, affiliate or sponsor of Wreal’s product.” 

The issue doesn’t end with the name, though, Hansen told the panel. 

“You don’t just look at the marks themselves, you look at their commercial setting,” he said. “The only way you can become a FyreTV customer is by going to the website. There’s no other way to do it.” 

Hansen told the panel that users would be “barraged” by pornographic material when signing up. 

“You can buy the Amazon Fire TV at Amazon.com, at Best Buy, at Staples. None of which are places where you can buy Wreal’s product. Similarly, from an advertising perspective, Amazon advertises its product on television, on the Amazon website, and in magazines. None of which are places that Wreal advertises,” he said. 

Lagoa was joined on the panel by U.S. Circuit Judges Andrew Brasher, a fellow Trump appointee, and Charles Wilson, a Bill Clinton appointee. The panel did not indicate when it would rule on the case. 

%d bloggers like this: