All You Ever Wanted To Know About HUSTLER – And More

Submitted by patentadmin on Wed, 12/15/2010 - 13:16

Some families fight at the Thanksgiving table; others take their fight to court. (L.F.P. IP, LLC and L.F.P. Inc. and Larry C. Flynt vs. Hustler Cincinnati, Inc. and Jimmy R. Flynt)

Larry Flynt is, of course, the famous – or, depending on your viewpoint, infamous – publisher of Hustler magazine. He is less well known as a champion of the constitutional right to freedom of expression. Few people are aware he is also a former candidate for President of the United States (we are not kidding). Jimmy Flynt is Larry’s younger brother and the owner of Hustler Cincinnati, a “gentlemen’s club” (advertising lingo for “nudie bar”) which uses the trademark HUSTLER.

Larry claims he is the sole owner of L.F.P. IP, LLC and L.F.P. Inc. and that they, in turn, own all rights to the HUSTLER trademark. He has sued Jimmy for trademark infringement. That’s right folks, he sued his own kid brother.

The complaint in this internecine feud is rather pedestrian, running to only 10 pages of mostly standard allegations of trademark infringement, unfair competition and deceptive trade practices. Jimmy, naturally, filed an answer denying virtually everything. He then filed a counterclaim – and what a document that is!

The counterclaim is 86 (yes, 86!) pages in length, exclusive of exhibits, and consists of 263 numbered paragraphs. The first 7 paragraphs identify the parties. The opus Jimmyus then goes on for 183 paragraphs (61 pages) describing General Factual Allegations Regarding Jimmy And Larry’s Partnership And The Hustler Enterprise. In essence, Jimmy dumps on Larry and presents his version of the history of the “Hustler empire” and claims all of the credit for the “success” (?) of the business. Included in this novella – seemingly drafted as a screenplay – are the following insights into the HUSTLER HISTORY:

• From the late 1970s through the mid 1980s, “Larry was physically and/or mentally incapacitated and was otherwise acting in an irrational, destructive and reckless manner;” (para. 19)

• In 1969, Larry and Jimmy purchased their first bar for $5,000; they “hired several female dancers/servers and were able to make enough money in the first week or so to cover Jimmy’s $5,000 check by the time it was deposited;” (para. 34)

• In 1974, Jimmy and Larry began HUSTLER magazine; to finance it they “began siphoning withholding tax dollars from their female employees/dancers as a means to fund the magazine and keep it afloat … Jimmy faced civil and criminal liability with respect to the burgeoning tax delinquencies;” (para. 62)

• In 1975, Jimmy and Larry paid $18,000 for nude photographs of Jackie Onassis Kennedy, turning the magazine into “an instant and overwhelming commercial success;” (para. 65)

• In the early 1980s, “Larry went through an extended period of emotional instability and recklessness. For extended periods of time, Larry (and Althea) [his then wife] essentially went into exile in their bedroom behind a 500 pound steel door guarded by private security guards who were armed and dangerous;” (para. 81)

• Althea “subsequently contracted HIV/AIDS. She died in June of 1987 as a consequence of drowning in a bathtub;” (footnote, bottom of page 28)

• Due to, inter alia “drug addiction and his underlying mental illness … Larry made threats against President Reagan, federal judges, his family, acquaintances and others;” (para. 83) and

• Between October of 1983 and February of 1984, “Larry had several outbursts where he shouted obscenities and threats at federal judges, including the U.S. Supreme Courts, during oral arguments … [he was] sent to federal psychiatric prison in Butner, N.C.” (para. 84).

Despite these, and similar titillating disclosures, Jimmy – by his own account – remained a steadfast and loyal brother and PARTNER, giving his all to make the business a success. Yes, indeed, folks. Jimmy claims that the business is a PARTNERSHIP, that he is an EQUAL PARTNER with Larry, that HE created and first used the HUSTLER trademark and that he has the unfettered right to use of it!

This brings us to the chapter entitled, Causes Of Action. Having recounted the history of the family porn business ad nauseum, Jimmy starts off in Count 1 by requesting an accounting and dissolution of the “partnership,” the appointment of a receiver, and the “equitable” distribution of “partnership property.” Apparently concerned that the judge has forgotten the law while perusing the lengthy historical diatribe, he presents a 10-paragraph legal tutorial. He then concludes with a request for “at least a 50-50 distribution of partnership assets.”

Count 2 claims a breach of fiduciary duty and, like predecessor Count 1, begins with a recitation of the law for the bemused, or benumbed, judge.

Count 3 “sounds in” (lawyerspeak for “alleges”) fraud and unjust enrichment, seeking to have the Hustler “empire” placed in a trust – apparently at least in (unspecified) part for Jimmy’s benefit. The corresponding tutorial runs over 2 pages.

In Count 4, Jimmy, who in the preceding 80 pages has steadfastly and repeatedly claimed to be Larry’s PARTNER, argues that, if he isn’t a partner, then he is an employee and he was wrongfully terminated.

Having seemingly lost track of what he previously requested, in Count 6 Jimmy seeks a declaratory judgment of his rights with respect to the various HUSTLER trademarks.

Count 7 essentially asserts that Larry brought suit against Jimmy in bad faith and Count 8 seeks an injunction barring Larry from interfering with Jimmy’s operation of a nudie bar in Cincinnati and from “disposing, transferring, selling, offering to sell, devaluing, dissipating, or encumbering any partnership asset/property, from taking any loans, for applying for any loans, or from conducting any business outside the normal and ordinary course of business.” (As if this business had a “normal” course.)

Well, there it is folks. Larry sued to collect $8,400 in allegedly unpaid trademark royalties and to bar Jimmy from further use of the HUSTLER marks. In response, Jimmy is claiming half of everything – whatever that may be – and has aired Larry’s dirty laundry in public. It would seem that Larry’s suit was, at best, ill-advised. We can’t wait to see how Larry responds to Jimmy’s counterclaim.

THE LESSONS TO BE LEARNED: (1) All agreements SHOULD BE IN WRITING; and (2) people who live in glass houses shouldn’t throw stones – also, they should close the curtains before they get undressed.

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