In a case of “reverse confusion,” an adult-oriented online streaming service is hoping a federal appeals court will overturn a lower court’s decision that Amazon’s “Fire TV” service does not create a likelihood of confusion with its own “FyreTV” trademark.
Most trademark infringement cases involve claims of a “likelihood of confusion.” That is, an earlier trademark holder claims that a newer user’s use of a similar mark gives the wrong impression that the newer user’s goods or services come from the earlier user.
But reverse confusion cases such as Wreal, LLC v. AMZN turn that on its head. In those cases, newer users are so well-known that earlier trademark holders worry consumers will think their products actually come from the newer party.
Got that? In other words, the earlier trademark holder fears being taken for the copycat.
In the Amazon case, the allegation is somewhat ironic. Essentially, a porn channel is saying that people will think it is trying to ride Amazon’s coattails with its “FyreTV” name.
Indeed, the complaint quotes an article on CNET, the website that publishes articles and reviews on technology and consumer electronics, that wonders whether the FyreTV owner launched its brand six years earlier expecting Amazon to start using the “Fire TV” name.
“The author questions whether WREAL is somehow the wrongdoer, when in reality the wrongdoer is Amazon,” the complaint stated.
So far, a federal district court has found no likelihood of confusion created by Amazon’s use of “Fire TV.” It remains to be seen whether the U.S. Court of Appeals for the Eleventh Circuit finds any error in that ruling. Amazon, of course, argues that the U.S. District Court for the Southern District of Florida made no reversible error. But Wreal says it should get a chance to prove its case at trial.
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