Wreal, LLC v. Amazon.com, Inc. ( 2016 )

Case: 15-14390 Date Filed: 10/28/2016 Page: 1 of 8
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14390
________________________
D.C. Docket No. 1:14-cv-21385-JAL
WREAL, LLC,
a Florida limited liability company,
Plaintiff - Appellant,
versus
AMAZON.COM, INC.,
a Delaware corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 28, 2016)
Case: 15-14390 Date Filed: 10/28/2016 Page: 2 of 8
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
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
2
Case: 15-14390 Date Filed: 10/28/2016 Page: 3 of 8
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
3
Case: 15-14390 Date Filed: 10/28/2016 Page: 4 of 8
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
4
Case: 15-14390 Date Filed: 10/28/2016 Page: 5 of 8
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
5
Case: 15-14390 Date Filed: 10/28/2016 Page: 6 of 8
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 seeking a preliminary injunction of even only a few months—
though not necessarily fatal—militates against a finding of irreparable harm. A
preliminary injunction requires showing “imminent” irreparable harm. Siegel, 234
F.3d at 1176-77 (quoting Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v.
6
Case: 15-14390 Date Filed: 10/28/2016 Page: 7 of 8
City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)). Indeed, the very idea
of a preliminary injunction is premised on the need for speedy and urgent action to
protect a plaintiff’s rights before a case can be resolved on its merits. Cf. Univ. of
Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 1834 (1981); All Care
Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1539 (11th Cir.
1989). For this reason, our sister circuits and district courts within this Circuit and
elsewhere have found that a party’s failure to act with speed or urgency in moving
for a preliminary injunction necessarily undermines a finding of irreparable harm.
See, e.g., Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985); Taylor v.
Biglari, 971 F. Supp. 2d 847, 853 (S.D. Ind. 2013) (citing Shaffer v. Globe
Protection, Inc., 721 F.2d 1121, 1123 (7th Cir. 1983)); Silber v. Barbara’s Bakery,
Inc., 950 F. Supp. 2d 432, 439-40 (E.D.N.Y. 2013); Hi-Tech Pharm., Inc. v.
Herbal Health Prods., Inc., 311 F. Supp. 2d 1353, 1357-58 (N.D. Ga. 2004); Seiko
Kabushiki Kaisha v. Swiss Watch Int’l, Inc., 188 F. Supp. 2d 1350, 1355-56 (S.D.
Fla. 2002).
Both in the district court and on appeal, Wreal has failed to offer any
explanation for its five-month delay. Nor can we discern from the record any
justification for the delay that would suggest that the district court made an error in
judgment by pointing to the delay to find a lack of imminent irreparable harm. In
fact, as the district court observed, the preliminary-injunction motion relied
7
Case: 15-14390 Date Filed: 10/28/2016 Page: 8 of 8
exclusively on evidence that was available to Wreal at the time it filed its
complaint in April 2014. Simply put, the district court did not abuse its discretion
when it concluded that Wreal failed to demonstrate an imminent injury that would
warrant the “extraordinary and drastic remedy” of a preliminary injunction. See
Siegel, 234 F.3d at 1176; cf. Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct.
660, 674 (1944) (“The award of an interlocutory injunction by courts of equity has
never been regarded as strictly a matter of right, even though irreparable injury
may otherwise result to the plaintiff.”).
Because Wreal cannot establish reversible error with respect to the injury
prong, we need not consider whether the district court correctly analyzed the
likelihood of success, the balance of harms, or the public interest. Accordingly, the
district court’s denial of the preliminary injunction is AFFIRMED.
8