CINCINNATI — Jimmy Flynt has petitioned the 6th U.S. Circuit Court of Appeals to seek a rehearing on its ruling that he doesn't have the right to use the "Hustler" trademark in connection with his adult sex toy and novelty store in Cincinnati.
Jimmy Flynt, in his appeal seeking a rehearing en banc, or by the entire appellate court, claims the appeals court misconstrued or omitted numerous key facts in its ruling that sided for his brother Larry Flynt, who runs LFP.
In a unanimous decision earlier this month, a three-judge panel denied Jimmy Flynt's bid to overturn an injunction prohibiting him from using the Hustler mark. The 6th Circuit ruled Jimmy and Larry Flynt were not business partners in Hustler and Jimmy therefore didn't have a right to use the company's trademark.
The appeals court also snuffed out Jimmy Flynt's wrongful termination claim relating to his 2009 ouster from Hustler, saying he hadn't proved that his brother guaranteed he'd be employed for life.
Jimmy Flynt told XBIZ that he's so adamant over the case that he will petition the U.S. Supreme Court to take it up if the 6th Circuit refuses to hear the case en banc.
"This is a very compelling and complicated case that covers the 40 years of Hustler," Jimmy Flynt said. "I hope they take another look. If not, we will move on to Supreme Court."
In a brief to the court, Jimmy Flynt's lawyers said the 6th Circuit panel of three judges who took on the appeal had failed to look at the "totality of the circumstances" of the Flynt brothers' relationship and instead relied on a five-prong test required to constitute a partnership in Ohio.
"There is no bright line test," Jimmy Flynt's appeal for a rehearing said. "Courts have considered numerous factors and have employed numerous tests in analyzing partnerships. No single factor is controlling."
The appeal for rehearing also said that key facts critical to establishing Jimmy Flynt's ownership of the Hustler enterprise were omitted.
Jimmy Flynt's counsel said the panel failed to acknowledge that he was the sole liquor permit holder for the first six Hustler nightclubs, which is key to the appeal because Ohio doesn't recognize an individual's ownership of a liquor-serving establishment unless the individual is named on the permit.
Larry Flynt, the 6th Circuit opinion said, testified that he couldn't obtain liquor licenses for any Hustler establishments because all the early Hustler clubs were exclusively in Jimmy Flynt's name.
"As such, as a matter of well-established law and public policy, Jimmy was the sole owner and founder of Hustler," the brief said. "At a minimum, he was a co-owner.
"Apart from Jimmy’s significant nonfinancial contributions over the course of 40-plus years, the record evidence was clear that Jimmy contributed far more money to the company than the initial $5,000 in start-up funds," the brief said.
The brief also said the 6th Circuit panel had failed to address the doctrine of promissory estoppel under Ohio law in Jimmy's wrongful termination claim, despite finding Larry Flynt had promised his brother continued employment and "brotherly protection."
"A jury could conclude that Jimmy’s termination at the age of 61 without continued payment, severance or retirement benefits was wrongful and in violation of Ohio law," the brief said.
Larry Flynt, when reached by XBIZ for comment on Jimmy Flynt's latest appeal for rehearing, said he had two words for his brother: "Good luck."
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