15 January 2016Trademarks

Flynt brothers do battle over ‘Flynt’ trademark

Disputes between siblings have captured the imagination for centuries, from Cain and Abel to Ed and David Miliband.

But now a US appeals court has stepped into the latest battle in the long-running feud between adult entertainment entrepreneur and owner of the “Hustler” magazine Larry Flynt, and his brother Jimmy.

On Wednesday, January 13, the US Court of Appeals for the Sixth Circuit rejected a request by Jimmy to reverse a permanent injunction that restricted his use of the ‘Flynt’ trademark.

In 2011, the US District Court for the Southern District of Ohio ruled in favour of Larry and granted his request to stop Jimmy using the ‘Hustler’ trademark in connection with a store in Cincinnati.

Following the injunction, Jimmy opened a store in Kentucky called Flynt Sexy Gifts and operated the domain

Larry, who also owns a US trademark covering his name, claimed the store was infringing and called for the injunction order to be modified to also include the term ‘Flynt’.

The Ohio court agreed and granted the injunction. The modified injunction said that any use of the name ‘Flynt’ by Jimmy in connection with retail products and services should also include his first name as well.

Jimmy appealed against the modified injunction, arguing that Larry had not demonstrated that there was a “grievous wrong” in using the mark, as defined in the US Supreme Court’s 1932 United States v Swift decision.

However, the sixth circuit said the Supreme Court has since relaxed the “grievous wrong” standard, citing the 1968 decision in United States v United Shoe Machinery Corp that an injunction can be modified if it has not “achieved its principal objects”.

Judge Jeffrey Sutton, who wrote the 3-0 opinion, said: “The district court took the Supreme Court’s guidance to heart, appropriately assessing whether changed facts required modified relief rather than leaning too heavily on Swift’s ‘grievous wrong’ rhetoric.”

And he added that trademark law must protect a business from confusion in the marketplace, even if the infringement comes from a family member.

“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,” he concluded.

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