The LA Times and AP reported on the trademark infringement lawsuit filed by Hustler Magazine publisher Larry Flynt on Monday against his nephews, Jimmy Flynt II and Dustin Flynt, over their decision to start their own adult film distribution company named Flynt Media Corporation. The Flynt brothers had worked for their uncle for over a decade, but Larry Flynt reportedly fired them for being “unproductive,” but giving them each a $100,000 severance package which they then used to start up their new company.
Given the widespread notoriety of both Larry Flynt and Larry Flynt Publications in connection with the porn industry, it’s very likely that consumers would wrongly affiliate a porn company named Flynt Media Corporation with Larry Flynt and/or Larry Flynt Publications, which, to the extent that Flynt cannot control the “quality” of the company’s offerings, could cause irreparable harm to Flynt’s goodwill (if that’s what you want to call it).
Some may argue that the Flynt brothers have the right to use their own name and that this is a case of a big bully picking on the little guys. While I’m the first person to stand up for the little guys in the face of a big bully corporation's flexing their trademark muscles, people forget that trademark law is designed to protect consumers in the marketplace. The brothers do not have the right to use a business name that is likely to cause confusion in the marketplace -- even if they do have some bona fide basis for the name.
Besides, did they really need to operate under the name Flynt Media Corporation? Why couldn’t they have chosen JDF Media Corporation or even something like Flynt Brothers Media Corporation? The additional word “Brothers” after Flynt goes a long way towards preventing consumer confusion -- and at the same time allows the brothers to use their name for the business. Or did they choose to just go with their particular business name because they knew that having just the “Flynt” name by itself might make some people believe that it is associated with Larry Flynt which would probably help open some doors for a company seeking to make it big in the already very-crowded field of adult entertainment? That’s called “trading on goodwill” – and that’s unfair competition.