Porn Mogul Wins Battle With Brother Over Flynt Name

(CN) - Jimmy Flynt, brother of porn king Larry Flynt, cannot use the Flynt name to market adult entertainment products unless his first name is also prominently shown, the Sixth Circuit affirmed.

Jimmy and Larry Flynt spent 40 years building up the Hustler empire from a few small "go-go clubs" into a "national multi-media empire" that includes several magazines, Web sites, videos, gentlemen's clubs, retail stores, a casino and a clothing line, according to a lawsuit filed more than six years ago in Hamilton County, Ohio.

But in 2009, the brothers had a falling out, allegedly over Jimmy's inability to control his sons' behavior.

Hustler, owned by Larry, fired Jimmy, but Jimmy continued to use the Hustler mark without paying for it.

Jimmy claims he coined Hustler's catchphrase, "Relax... it's just sex," and re-energized the brand in the mid-1990s, leading it to dominate the porn video industry.

But a federal judge rejected Jimmy's lawsuit seeking to dissolve Hustler and permanently barred him from ever using the Hustler name after Jimmy opened several retail stores using the trademark, including Hustler News and Gifts and Hustler Hollywood Ohio.

After that decision, Jimmy switched to using his - and Larry's - name, opening a new store called Flynt Sexy Gifts. "Larry Flynt" is a trademark owned by Hustler.

A federal judge found that the store's name was "likely to cause confusion with the Larry Flynt trademark," and barred Jimmy from using the Flynt name in connection with adult entertainment products unless accompanied by his first name in the same size and color font.

The Sixth Circuit upheld the ruling Wednesday.

"Just as trademark law protects one business and its marks from sharp practices by unrelated businesses, it must do the same for related businesses - when one family member tries to sow confusion in the marketplace over the source and goodwill of a product by using a mark that another family member has created and developed," Judge Jeffrey Sutton said, writing for a three-judge panel.

The lower court carefully crafted its injunction to respond to Jimmy's use of the Flynt name at his gift shop in Florence, Ky., the opinion noted.

"To the extent Jimmy remains interested in using his name, the modified injunction allows him to do just that: He can still give the store, any website, or other products the mark 'Jimmy Flynt,'" Sutton wrote. (Emphasis in original.)

Jimmy himself provided evidence against his own case, the Cincinnati-based appeals court found.

When asked if any consumer had ever been confused about his use of the Flynt name, he testified, "I have experienced the confusion in the names, you know. Jimmy and Larry Flynt, in this market area, is somewhat synonymous with Hustler or with Flynt. You're not going to get around that."

Another witness, Alec Helmy, who owns a news organization focused on covering the adult entertainment industry, testified that he would assume a store called Flynt Sexy Gifts was owned by Larry.

"Based on this testimony, the district court fairly concluded that Jimmy's marketing campaign was likely to cause confusion among consumers, and it fairly modified the injunction to respond to that possibility," Sutton concluded.

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