CINCINNATI — Larry Flynt, in a new motion filed this week, has asked an Ohio federal judge to hold brother Jimmy Flynt in contempt for the use of the name "Flynt Sexy Gifts" to sell adult products online and at its Florence, Ky., store.
Larry Flynt, who leads LFP and Hustler, is seeking $100,000 in sanctions, as well as attorneys fees, after alleging that Jimmy Flynt "continues to trade off his brother’s name through the Internet and large signs advertising his retail operations" despite an earlier injunction.
Citing an earlier restraining order affirmed by the 6th U.S. Circuit Court of Appeals, Larry Flynt's attorneys said in the motion: "He cannot be allowed to get away with this intentional violation of the injunction."
(Last week, Larry Flynt dropped litigation efforts in Florida against Jimmy Flynt's Naples, Fla., retail outlet under the same name because the store closed down over zoning issues in the county.)
Larry Flynt attorneys allege in the motion that Jimmy Flynt is flouting the earlier order and subsequent appeals court ruling issued last year over the store's signage because it creates a likelihood of confusion with the mark "Larry Flynt."
Further, they allege, that Jimmy Flynt was issued another restraining order, along with his sons, in 2010 requiring the of use their first names in conjunction with the "Flynt" name in any commercial effort. In that case, Dustin Flynt and Jimmy II Flynt decided to compete with LFP in the adult video market under the name Flynt Media Corp.
In the 2010 case, the Los Angeles judge also required the use of a disclaimer that the business is not "sponsored, endorsed by, or affiliated with Larry Flynt or Hustler, or any business enterprise owned or controlled by Larry Flynt."
In the current motion, Larry Flynt attorneys exhibit pictures of signage, store receipts and copies of numerous web pages that incorporate the Flynt Sexy Gifts name.
"In this case, Jimmy is undoubtedly in violation of the injunction by using the website FlyntSexyGifts.com to market adult products and his retail locations and prominently marketing his store in Florence, Ky., a Flynt Sexy Gifts," the motion said. "With respect to the Florence store, the signs on both the store itself and the shopping center’s directory display 'Flynt' in large capital letters, with Jimmy’s 'first name only inside an adjacent crest ion much smaller letters, which is hardly discernible.'”
The motion for sanctions over Flynt Sexy Gifts wasn't the only legal action filed against Jimmy Flynt by his brother this week.
Larry Flynt attorneys, in another motion involving a separate case, asked the same court for additional sanctions based on second-amended counterclaims made by Jimmy Flynt and his attorneys in an already-decided case involving ownership of LFP and Hustler.
That case, heard at the 6th Circuit, affirmed the findings of an Ohio judge who concluded that Jimmy Flynt had failed to establish that he'd had an express or implied business partnership with his brother.
But in September Jimmy Flynt asked for a rehearing on its ruling that he does not have the right to brand his adult-themed store in Cincinnati with the Hustler trademark, claiming the appeals court misconstrued or omitted numerous key facts in its decision.
Jimmy Flynt also contends in the second-amended counterclaim that Larry Flynt breached an oral contract to make a trust provision.
"This claim, worth potentially millions of dollars, was never pled before the counterclaim," Larry Flynt attorneys wrote. "And it cannot be suggested that Jimmy is litigation-averse. Jimmy pled countless other claims in at least six different pleadings against Larry before he suddenly realized he had a trust claim. Interestingly, Jimmy neglected to plead a trust claim even after he admitted he had knowledge of it.
"Jimmy’s failure to plead a trust claim until the eleventh hour confirms that it was wholly frivolous, and invented purely to keep litigation alive."
With the second motion that seeks attorneys fees, Larry Flynt lawyers say Jimmy Flynt and his counsel "knowingly asserted meritless claims throughout this matter" and "cost Larry hundreds of thousands of dollars in unnecessary legal fees."
"Jimmy and Jimmy’s counsel must be held to account for this abuse of the judicial system," Larry Flynt attorneys said.
While Larry Flynt declined comment for this story, Jimmy Flynt told XBIZ that the basis for both these action and others is "retaliation."
"It is plain and simple — strictly retaliation for winning $170,000 in attorneys fees that [Larry Flynt] paid out over the Hustler property lease in Cincinnati," Jimmy Flynt said. "And then there is the case of my malpractice suit against the attorney who represents [Larry Flynt]."
Jimmy Flynt two years ago sued adult industry attorney Paul Cambria Jr., four other attorneys and the Buffalo, N.Y. law firm of Lipsitz, Green, Scime and Cambria.
Jimmy Flynt claims in the malpractice suit that the attorneys and the firm misrepresented him in several real estate ventures and asset transfers and took action against him, in a conflict of interest, to get him fired from Flynt Management Group.
Jimmy Flynt also claims that from 2000-2009 the firm failed to properly represent him in a string of real estate deals and also "failed to properly advise, counsel and guide Jimmy and Hustler Cincinnati Inc. as to its trademark and intellectual property rights with respect to use of the Hustler name."
He also accuses Cambria for failing to advise Hustler Cincinnati that it would potentially jeopardize and lose their rights to the Hustler name by making monetary transfers to LFP as "licensing fees."
"These transfers were directed by Cambria and defendant attorneys without full and proper disclosure as to the legal implications," according to the suit that continues at federal court in Cincinnati.
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