When U.S. District Judge A. Howard Matz hears Larry Flynt’s and LFP Video Group’s request tomorrow morning for a preliminary injunction against Flynt Media Corp., he will be weighing whether the startup has the legal right to use the family name in connection with almost any use that involves adult videos.
He also will hear accusations that Larry Flynt is trying to keep his nephews out of the adult entertainment business.
Flynt, in a declaration to the court on Tuesday, called that accusation “absurd.”
“I have no reason to keep them out of the entertainment industry,” Larry Flynt said. “I have numerous competitors in that business, most of which are more experienced and probably much better financed than [Dustin and Jimmy]. One more competitor would hardly make a difference to me and my companies.
“[But] I do strongly object to my nephews trading off on my Flynt name and mark, which I have made famous through long decades of use,” he said.
Larry Flynt said that his nephews’ claim to fame has been limited.
“Unlike me, my nephews Dustin and Jimmy II are hardly well-known or famous in the adult entertainment industry or otherwise — except perhaps as defendants in the instant lawsuit,” he said.
The nephews, meanwhile, said in a response motion last week through their attorneys that Larry Flynt and LFP have never applied for trademark protection, marketed or sold anything in commerce under the stand-alone term “Flynt.”
“It is unclear who, if anyone, owns the rights to the mark,” Flynt Media Corp. attorneys said in a response to the suit. “Is it Larry C. Flynt, Larry Flynt Publishing, or one of the ‘various affiliated’ LFP companies?
“This is not a trivial matter because, only the owner of a trademark can bring certain claims under the Lanham Act [that contains the federal statutes of trademark law],” Flynt Media Corp. attorneys said.
Larry Flynt, in the response, went on to say that after the issuance of a temporary restraining order two weeks ago, Dustin and Jimmy haven’t been complying with the order.
“I believe that the defendant’s tiny disclaimer [on the FlyntCorp.com website] hardly complies with the temporary restraining order, directing that it be in conspicuous terms,” he said.
According to evidence submitted to the court, Flynt Media Corp. added “Jimmy & Dustin” to the large “Flynt” mark on the website, as well as a one-liner that read, “Larry Flynt is not affiliated with this product or does not endorse this product.”
Larry Flynt and his company, LFP, also said that Flynt Media Corp. have been confusing business customers and consumers with promotions such as a party in Las Vegas.
LFP Video Group President Michael Klein said the nephews hosted a party during Adult Entertainment Expo at the Prive club and made a “flagrant attempt to deceive” attendees with a flyer that announced the party, according to a court filing.
“The front of the flyer says 'In like Flynt … You know the Name, You Know the Game,'” he said. “Clearly this is an attempt to usurp the famous Flynt name of plaintiff Larry Flynt.”
But Jimmy Flynt II said that an injunction would likely mean he could lose approximately $150,000 in his personal funds invested in the company, as well as the year he spent developing the business.
He also said that Flynt Media Corp. would have difficulty attracting any type of ongoing funding with an injunction hanging over the new company, which already has packaged at least 30,000 boxes and sleeves.
“In fact, several distributors have already refused to distribute any Flynt Media Corp. product while the present dispute is pending,” Flynt Media Corp. attorneys said.
“Plaintiffs waited until the eve of the AVN Convention and the DVD launch, then raced into court citing 'emergency,'” the attorneys said. “This conduct is telling and the court should not promote plaintiffs’ gamesmanship."
