The opinion of the court was delivered by: Hon. A. Howard Matz United States District Judge
PRELIMINARY INJUNCTION AGAINST DEFENDANTS FLYNT MEDIA CORPORATION, JIMMY FLYNT, II AND DUSTIN FLYNT
Upon reviewing the papers filed on behalf of Plaintiffs, Larry C. Flynt, LFP Video Group, LLC, and LFP IP, LLC, in support of their request for a preliminary injunction pending a final determination of this action, Defendants' opposition papers and Plaintiffs' reply papers, and after hearing oral argument on January 21, 2009, and having considered the factors relating to: (i) Plaintiffs' probability of success on the merits; (ii) the risks of irreparable injury to Plaintiffs in the event preliminary relief is denied; (iii) the existence of serious questions going to the merits of Plaintiffs' claims; (iv) the balance of hardships; and (v) the public interest, as well as the need for immediate relief by Plaintiffs in light of the short time frame involved as to the threatened use of the Plaintiffs' FLYNT name and mark, and conditioned on Plaintiffs filing a Second Amended Complaint adding LFP IP, LLC as a Plaintiff by January 23, 2009, the Court HEREBY FINDS and ORDERS as follows:
1. Plaintiffs have demonstrated a probability of success on the merits of their claims against Defendants, for violation of the Lanham Act, 15 U.S.C. § 1125(a). The Court incorporates by reference its oral findings concerning the likelihood of confusion.
2. Plaintiffs would likely suffer irreparable injury without this Court's intervention.
3. The public interest in preventing consumer deception as to the source of the respective products of Plaintiffs and Defendants would be served by the issuance of preliminary injunctive relief to Plaintiffs.
4. Although the balance of hardships weigh in favor of Defendants, that factor does not outweigh the other considerations.
Accordingly, Defendants Flynt Media Corporation, Jimmy Flynt, II and Dustin Flynt, together with their officers, agents, employees, successors and assigns, and those persons in active concert or privity with any of them, ARE HEREBY RESTRAINED AND ENJOINED, pending trial and final determination of this action, from:
1. advertising, selling, marketing or distributing adult-themed motion pictures, videos and DVDs, as well as other adult-themed goods, which contain the word "FLYNT" in any typographical format and phrase, including "Flynt Media Corporation" and "FlyntCorp Distribution;"
2. promoting such goods and services on Internet websites, including but not limited to and ; and
3. passing off such goods and services as those of Larry Flynt, the other Plaintiffs, or their affiliated companies.
The three provisions set forth just above do not prohibit Defendants from advertising, selling, marketing or distributing adult-themed goods that specifically contain their full and actual names (i.e., Jimmy Flynt and Dustin Flynt) so long as it also contains, in conspicuous bold and all capitalized letters, a disclaimer that states that Larry Flynt is not affiliated with the product or services and does not endorse them (the "Disclaimer"). In particular, on any website owned or operated by Defendants, including but not limited to , the Disclaimer shall appear on the same page as the words "JIMMY & DUSTIN FLYNT" and shall be of the same size font and typeface as the singular name "Dustin Flynt," as it appeared on on January 13, 2009.
The above preliminary injunction is effective immediately on all persons who have actual ...