By Thomas Long, J.D.
Jimmy R. Flynt—brother of publisher and business owner Larry C. Flynt—was properly enjoined from using trademarks owned by Larry Flynt and his companies, including a mark featuring their shared last name, the U.S. Court of Appeals in Cincinnati has held (LFP IP, LLC v. Hustler Cincinnati, Inc., January 13, 2016, Sutton, J.).
In 1969, the Flynt Brothers opened a bar and nightclub in Cincinnati called “The Hustler Club.” Larry then created his famous and infamous Hustler enterprise, a conglomerate that produced sexually explicit magazines and sold adult-themed products. Larry worked on and off for the business and opened a retail store, Hustler Cincinnati, in 2000. The brothers had a falling out, and Larry sued Jimmy for trademark infringement in 2009. In a 2011 decision, the federal district court in Cincinnati determined that Larry Flynt was entitled to a permanent injunction that prohibited Jimmy Flynt from using Larry’s HUSTLER trademark in connection with Jimmy’s retail business, or any other mark owned by Larry and his companies. That decision was affirmed on appeal.
Larry and his companies then filed a motion complaining that Jimmy had opened a new store in Florence, Kentucky, using the name “FLYNT Sexy Gifts.” This name allegedly infringed Larry’s LARRY FLYNT trademark. Finding that Jimmy’s business name was likely to cause confusion, the district court modified the injunction to prevent Jimmy and his companies from using the name “Flynt” in connection with the sale of adult entertainment products or services unless it was accompanied by the first name “Jimmy” in the same typography and on the same background color. Jimmy was also required to include a disclaimer with all usages of “Flynt,” except on store signage, stating that the goods or services were not associated with Larry Flynt or Hustler. Jimmy appealed the order modifying the injunction.
In the Sixth Circuit’s view, the district court “amply” justified its changes to the injunction. The modification was made in response to a change in the facts when Jimmy opened a new store and promoted it using the mark FLYNT SEXY GIFTS. The district court found that Jimmy’s marketing scheme would likely mislead consumers into thinking that the Florence store was associated with Larry, the Hustler empire’s public figurehead. Because the original injunction was tailored to prevent trademark infringement by Jimmy’s corporations, and because Jimmy had committed new violations, the district court acted appropriately when it modified its initial grant of relief to cover Jimmy’s conduct at the Florence outlet, the appellate court held.
The modified injunction was suitably tailored to the changed circumstances. The court permitted Jimmy Flynt to use his full name while protecting Larry’s interests in the LARRY FLYNT mark. The disclaimer requirement also took each side’s interests into account.
Trademark law permitted one sibling in a family to develop a trademark in a personal name, the court said. The injunction did not strictly prevent Jimmy Flynt from using his own name; he was just required to use his full name rather than his surname by itself.
Therefore, the injunction was affirmed.
The case is No. 15-3135.
Attorneys: Mark A. Vander Laan (Dinsmore & Shohl LLP) LFP IP, LLC, L.F.P. Inc., and Larry C. Flynt. Robert W. Hojnoski and Carrie M. Starts (Reminger Co., L.P.A.) for Hustler Cincinnati, Inc. and Jimmy R. Flynt.
Companies: LFP IP, LLC; L.F.P. Inc.; Hustler Cincinnati, Inc.
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