FyreTV Porn Service Asks 11th Circuit Panel To Resurrect Dumb Trademark Suit Against Amazon Over FireTV
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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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posted at: 12:00am on 20-Feb-2021
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Reminder: Just A Few Days Left Before Our '230 Matters' Conversation With Section 230 Authors Ron Wyden & Chris Cox
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Get your tickets for Section 230 Matters before February 23rd »There are just a few days left until Tuesday, February 23rd, and our Section 230 Matters event, celebrating Section 230, including a discussion with the two coauthors of the law, Chris Cox and Senator Ron Wyden. The event starts at 12:30pm PT. We're using a cool virtual events platform called Remo that will allow for networking/conversation prior to the panel. We'll take audience questions, via a built in system during the discussion, and then have post-panel table discussions.  This will be a fun and interesting event -- and also a way to support Techdirt, helping us to continue our reporting on Section 230 at a moment when it is literally front page news (for all sorts of ridiculous reasons). We look forward to seeing many of you next week!
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posted at: 12:00am on 20-Feb-2021
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