Wreal, LLC v. Amazon.com, Inc.

Case: 15-14390 Date Filed: 10/28/2016 Page: 1 of 8

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14390

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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.

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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.

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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

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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

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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

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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.

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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

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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.

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