Flynt Media Corp. owners Jimmy Flynt II and Dustin Flynt have been fighting since January to use their name on adult-themed goods after U.S. District Judge A. Howard Matz issued in January a preliminary injunction against the company.
On Wednesday, Matz said Flynt Media Corp. hadn’t carried their burden of showing there isn’t a “genuine” dispute and denied their trademark and right-of-publicity claims.
The right of publicity is generally defined as an individual's right to control and profit from the commercial use of his name, likeness and persona.
Jonathan W. Brown, counsel for Larry Flynt, said the LFP founder is happy with Matz's decision.
“[Larry Flynt] looks forward to having his rights vindicated at trial," he said late Thursday. "It is unfortunate that his nephews have chosen to attempt to enrich themselves at the expense of their uncle. He is obviously saddened by what he views as his nephews’ disloyalty, especially given all he has done for them in the past.”
Matz said that Flynt Media Corp. erroneously assumed that because LFP never used “Flynt” or “Larry Flynt” as stand-alone phrases, that they can have no claim to them under trademark law.
“The standard for determining whether an element of a composite mark qualifies for separate trademark protection is whether it ‘creates a commercial impression separate and apart from other material appearing with it,’ ” Matz said.
He also said that Flynt Media Corp.’s assumption that to allow the right-of-publicity claims to proceed in this case would mean that no one could ever use his own last name in any type of commerce if he shared that last name with a famous person.
But Matz said “not so,” citing a California statute on the matter
“Section 3344 prohibits the knowing use of a person’s name in commerce, while the common law prohibits the appropriation of a person’s identity,” he said. “If a jury were to find that the use of another individual’s name was not knowing, a claim under Section 3344 would fail. Likewise, if a jury found that the use of another individual’s name did not amount to appropriating that person’s identity, a common law right of publicity claim would fail."
Matz said that neither he nor the parties could find any California right-of-publicity cases where the defendant shared a name with the plaintiff.
But he said that Flynt Media Corp. cited to an instructive case involving a former Los Angeles Lakers star. “[A] court noted, 'whether or not Lew Alcindor ‘equals Kareem Abdul-Jabbar in the sense that "Here’s Johnny" equalled Johnny Carson, or "the greatest" equaled Muhammed Ali — or the glamorously dressed robot equalled Vanna White — is a question for the jury,' ” Matz said.
Matz said that Flynt Media Corp. should have known better of the possible liabilities knowing that they share the surname of Flynt.
“Given Larry Flynt’s fame and defendants’ use of the slogan ‘You Know the Name’ in promoting their products, a jury could reasonably find that defendants’ use of ‘Flynt’ was a knowing use of plaintiff’s name, or a use of his identity,” he said.
Matz, in his denial of Flynt Media Corp.’s motions, instructed for both sides to be in the courtroom on Nov. 23 for a pretrial conference, with trial slated for Dec. 8.
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