Wreal, LLC v. Amazon.com, Inc.

• Decision Date: 28 October 2016
• Docket Number: No. 15-14390,15-14390
• Citation: 120 U.S.P.Q.2d 1590,840 F.3d 1244
• Parties: Wreal, LLC, a Florida limited liability company, Plaintiff–Appellant, v. Amazon.com, Inc., a Delaware corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

840 F.3d 1244

120 U.S.P.Q.2d 1590

Wreal, LLC, a Florida limited liability company, Plaintiff–Appellant,

v.Amazon.com, Inc., a Delaware corporation, Defendant–Appellee.

No. 15-14390

United States Court of Appeals, Eleventh Circuit.

Date Filed: October 28, 2016

Daniel Foodman, Carlos Nunez–Vivas, Dennis Jay Kian Nio Wouters, John G. Marfoe, WNF Law, PL, Miami, FL, for Plaintiff–Appellant.

Justin A. Nelson, Susman Godfrey, LLP, Houston, TX, Patrick Bageant, Drew Hansen, Edgar Sargent, Susman Godfrey, LLP, Seattle, WA, Jamie Zysk Isani, Shannon Kelley Shaw, Hunton & Williams, LLP, Miami, FL, for Defendant–Appellee.

Before JORDAN, ROSENBAUM, and SILER,^* Circuit Judges.

ROSENBAUM

, Circuit Judge:

This is an interlocutory appeal from a district court's denial of a preliminary injunction in a reverse-confusion trademark dispute concerning the mark “FyreTV.” The district court denied the injunction because, among other reasons, the plaintiff pursued its preliminary-injunction motion with the urgency of someone out on a meandering evening stroll rather than someone in a race against time. Because the district court did not abuse its discretion in denying the injunction, we affirm.

I.

Plaintiff–Appellant Wreal, LLC, is a Miami-based technology company that was formed in 2006 with the goal of developing a platform for streaming video content over the internet. In connection with its business of supplying “telecommunications access to video and audio content provided via a video on demand service via the internet,” Wreal registered the marks “FyreTV” and “FyreTV.com” with the U.S. Patent and Trademark Office on October 14, 2008, and has used those marks in commerce continuously since 2007. Through FyreTV, Wreal exclusively streams adult content, the majority of which is hardcore pornography. In fact, Wreal describes its own FyreTV service as the “Netflix of Porn.”

Wreal's streaming service was initially available over its website, FyreTV.com, and through a proprietary set-top box. The set-top box, known alternatively as the “FyreTV box” and the “FyreBoXXX,” has been available to only those customers who sign up for a FyreTV account on Wreal's website; the device has not been sold in any other venue or on any other website. Wreal subsequently developed a FyreTV application to enable streaming over third-party devices and has shifted its business model away from selling its own boxes and towards streaming over the internet and third-party devices.

In 2011, Amazon started using the mark “Fire” in connection with its Kindle tablets—the “Kindle Fire”—to highlight the new model's ability to stream video over the internet. In 2012 and 2013, Amazon was developing several new products, including a new generation of tablets, a phone, and a set-top box, and it decided to use the “Fire” brand, along with its house brand of “Amazon,” with all of these products. On April 2, 2014, Amazon launched its set-top box, dubbed the “Amazon Fire TV.” Amazon Fire TV is a hardware device used for streaming “mainstream” “general interest” video via Amazon's own streaming service, “Instant Video,” or third-party streaming services such as Netflix. Amazon was aware of Wreal's FyreTV mark when it launched Fire TV but did not contact Wreal before launching Fire TV.

Just about two weeks after the launch of Fire TV, Wreal filed a complaint against Amazon in federal court on April 17, 2014, seeking treble damages and injunctive relief under the Lanham Act, 15 U.S.C. §§ 1114(1)(a)

, 1125(a). Wreal also sought relief under Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204, and Florida common law.

Despite the alacrity with which Wreal filed its complaint, for months, Wreal conducted no discovery and made just routine, case-management filings in the district court. Then, on September 22, 2014—over five months after filing its complaint—Wreal moved for a preliminary injunction. After conducting an evidentiary hearing, the magistrate judge recommended that the district court deny Wreal's injunction request, finding that Wreal failed to establish any of the prerequisites for a preliminary injunction. Wreal filed objections, and, after a de novo review, the district court overruled those objections and denied Wreal's preliminary-injunction motion. This interlocutory appeal ensued.

II.

To obtain a preliminary injunction, Wreal must make the following four showings:

(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.

Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000)

(en banc); accord

Levi Strauss & Co. v. Sunrise Int'l Trading Inc. , 51 F.3d 982, 985 (11th Cir. 1995). A preliminary injunction is an “extraordinary and drastic remedy,” and Wreal bears the “burden of persuasion” to clearly establish all four of these prerequisites. See

Siegel , 234 F.3d at 1176 (citing McDonald's Corp. v. Robertson , 147 F.3d 1301, 1306 (11th Cir. 1998) ).

We review a district court's denial of a preliminary injunction for abuse of discretion. Robertson , 147 F.3d at 1306

. A district court abuses its discretion when its factual findings are clearly erroneous, when it follows improper procedures, when it applies the incorrect legal standard, or when it applies the law in an unreasonable or incorrect manner. See

Klay v. United Healthgroup, Inc. , 376 F.3d 1092, 1096 (11th Cir. 2004). But as its name implies, the abuse-of-discretion standard “allows a range of choices for the district court, so long as any choice made by the court does not constitute a clear error of judgment.”

Collegiate Licensing Co. v. Am. Cas. Co. of Reading, Pa. , 713 F.3d 71, 77 (11th Cir. 2013)

.

Appellate review of a preliminary-injunction decision in particular is exceedingly narrow because of the expedited nature of the proceedings in the district court. See BellSouth Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC , 425 F.3d 964, 968 (11th Cir. 2005)

. Our review is deferential since a district court often must make difficult judgments about the viability of a plaintiff's claims based on a limited record and “without the luxury of abundant time for reflection.” Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc. , 304 F.3d 1167, 1171–72 (11th Cir. 2002). So a plaintiff faces not only a tough road in establishing four prerequisites to obtain a preliminary injunction in the first instance, but, on appeal, must also overcome the steep hurdles of showing that the district court clearly abused its discretion in its consideration of each of the four prerequisites. See

BellSouth , 425 F.3d at 968.

III.

Because Wreal must meet all four prerequisites to obtain a preliminary injunction, failure to meet even one dooms its appeal. See Siegel , 234 F.3d at 1176

. In this case, the district court concluded that Wreal's unexplained five-month delay in seeking a preliminary injunction, by itself, fatally undermined any showing of irreparable injury. The district court did not abuse its discretion in reaching this conclusion.

A delay in...