CINCINNATI—When the name is "Flynt," is there seriously anyone in America—young or old, male or female, liberal or conservative—who, upon hearing the name, doesn't immediately think of Hustler publisher Larry Flynt?
The Sixth Circuit Court of Appeals obviously agrees. In a ruling issued today, a three-judge panel concluded that an injunction put in place by the U.S. District Court prohibiting Larry's brother Jimmy (and his associated entities) from using trademarks owned by Larry (and his associated entities) included a trademark featuring their shared last name: Flynt.
The immediate cause of the controversy was Jimmy's opening, in 2013, of a store in Florence, Ky., which he named "FLYNT Sexy Gifts"—but after Larry moved for a contempt citation, claiming that the previous injunction should apply to this new use of the Flynt name, the judge in the case denied the motion, finding that the injunction did not directly prohibit Jimmy’s conduct at the Florence store—but suggested that he would be willing to modify the existing injunction to include that use.
Picking up on the judge's cue, last year, Larry filed a motion to make just such an adjustment to the injunction, which the trial judge granted after an evidentiary hearing. Jimmy appealed, and the current ruling by the Sixth Circuit upholds the judge's modification.
"The district court amply justified its modification to the injunction," the panel ruled. "The court found that the facts on the ground shifted when Jimmy opened a new store and marketed it under the name 'FLYNT Sexy Gifts.' In particular, it found that Jimmy placed a sign in front of the store that said 'FLYNT Sexy Gifts' (with the name 'Jimmy' written in barely visible font nearby), created a website at www.flyntsexygifts.com, and printed the phrase 'FLYNT SEXY GIFTS' on receipts issued at the Florence location."
In Jimmy's opposition to the modification, he claimed that Larry had never intended to use the name "Flynt" to market retail goods, but rather DVDs, VOD and TV programs—and that anyway, no one would necessarily mistake Jimmy's use of "Flynt" as having anything to do with Larry or his companies. The Sixth Circuit shot down both arguments—the latter, interestingly, by referring to the testimony of Xbiz owner Alec Helmy, who said that he himself would assume that any retail use of "Flynt" meant that Larry owned it.
The entire Sixth Circuit ruling can be read here.
