LOS ANGELES—U.S. District Judge A. Howard Matz yesterday issued a modification of the permanent injunction he issued on December 28, which restrains LFP Video/Hustler owner Larry Flynt's nephews, Jimmy Flynt II and Dustin Flynt, from using the simple identification "Flynt" to sell videos or other sexual content to the public.
While the modified injunction is quite similar to the earlier version, missing are the requirements that the defendant nephews, their employees and other associates transfer to Larry Flynt ownership of any adult-related domain names under their custody or control that contained the unmodified use of the name "Flynt" in their URL, including "flyntdistribution.com," "flyntreport.com," "flyntmedia.com" and "flyntcorp.com," though the defendants were free to keep any domain that incorporated the defendants' first names along with the "Flynt" usage.
But despite that requirement's absence from the modified Order, Jonathan Brown, co-counsel for Larry Flynt, told AVN.com that the presumption that that requirement had been fulfilled is incorrect.
"What happened was, Jimmy Flynt II put in a declaration last week identifying some 70 or 75 domain names that he had registered that use just the Flynt name without a first name, and many of them were adult-specific, but some of them were not," Brown said. "They then moved to modify the previous Order, and we put in papers in response. The issue was, to the extent that they're not using these domain names in connection with a confusingly similar product or service in the adult arena, they should not be ordered to turn over such websites. What the judge did, instead of getting into which ones belong where, his Order basically prohibits them from using any of those domain names that just have the Flynt last name in connection with any adult entertainment service, whether it be advertising, promoting, selling, distribution, etc.. So as far as we know, they've just abandoned them."
"They're free to use jimmyflyntxxx.com or jimmyflynt.com or dustinflyntxxx.com or dustinflynt.com—those type of domain names that have their first names in them, they're going to be free to exploit and use such domain names in the adult arena," Brown added. "It's just, when you have just the name 'Flynt' on an adult entertainment product, they're automatically going to think of Larry or Hustler, and that was the gist of the case."
Similarly, the previous Order had required the defendants to "destroy all DVDs, DVD box covers and any related promotional materials that violate the terms of this Order," but again, Judge Matz modified that Order during oral argument on Monday.
"The judge said at the oral argument that basically, if they can change the boxcovers and the labeling to conform with the injunction, they do not have to physically destroy the DVDs," Brown stated. "If they reprint boxcovers or somehow change them so it conforms with the other provisions, they do not have to be destroyed. The judge didn't want them to have to throw out tens of thousands of dollars of DVDs that have already been burnt; he would allow them to basically have the chance to correct the boxcovers and the labeling."
But what about the fact that the content of the DVDs themselves reflect only the Flynt name?
"What I believe the court is most concerned with is what they call 'initial interest confusion' or 'purchasing confusion'," Brown explained. "What I mean by that is, when you see a product on a shelf in a store, it's the box that gets your attention; you understand that this is a box came from a certain company and this box came from a certain person. That's what's pivotal in the consumer's mind, is when he or she picks up that box, and it says 'Flynt' or 'Hustler' on it, he or she is going to think it came from a Larry Flynt company. But when you get home and pop it in the DVD player, you've already made the purchase, so whether it says 'Flynt' when they watch the movie isn't as important. So the concern is not so much with the content that's on the DVDs; it's with what the boxcover has on it."
The only other significant change from the previous Order is the establishment of a time restraint on the requirement that the defendants conspicuously use their first and last names in advertising, selling, marketing, promoting or distributing adult-themed goods and services, and that any such product, service, advertisement or promotional material contain the "conspicuous" disclaimer, "This [video/website (or other relevant term)] is not sponsored, endorsed by or affiliated with Larry Flynt or Hustler, or any business enterprise owned or controlled by Larry Flynt."
Added to that requirement is the condition, "This provision shall expire on December 31, 2012 unless by not later than six weeks before it expires Plaintiffs move to have it extended and establish good cause for doing so."
The new condition essentially gives Jimmy Flynt II and Dustin Flynt three years to establish their own brand within the adult marketplace with sufficient brand identification that it will no longer be confused with any Larry Flynt enterprise, thus making the above disclaimer unnecessary. Whether the defendants will be able to accomplish that branding remains to be seen, and it is likely that absent a revolutionary ad campaign, Larry Flynt's attorneys will return to court by mid-November, 2012 to argue that this condition remains unfulfilled.
"At the end of the day, this case is about stopping and enjoining the nephews from using and exploiting the Flynt name in a way that might suggest a connection, an endorsement or a connection somehow with Larry Flynt and the companies," Brown summarized. "We're very, very happy that the judge has worked very hard at addressing the likelihood of confusion among consumers and any suggestion of an affiliation or connection."
"Larry tried and tried to resolve this multiple times," Brown continued, "and it's just unfortunate that it had to keep going on for whatever reason; the nephews wanted their day in court and we had to go through the trial, even though we tried to resolve it beforehand. By the way, despite what their attorney said after our last hearing in December, the boys never did bring their threatened motion for attorneys fees. We discussed it quite a bit with the other side, and they declined to pursue the attorneys fees."
Monday's Order, then, should end the dispute between Larry Flynt and his nephews, but Brown said he'll be watching how the rebranding situation plays out.
"We're going to be watching them very closely to make sure that they follow what's supposed to happen," Brown assured.