Lost vs Lady Gaga: Mayhem over registered word marks and unregistered logos

Source: Lady Gaga - Facebook

In March, the global superstar launched her new album and announced her new tour, both titled “Mayhem”. Alongside record-breaking album sales came a merchandising opportunity, mostly consisting of articles of clothing depicting a “Mayhem” logo.

Legal mayhem ensues for Lady Gaga

Enter Lost International, LLC, a California-based lifestyle brand which cemented itself in surfing culture since its inception in 1985. It was late March when Lost instituted legal proceedings in the US District Court for the Central District of California against Lady Gaga for alleged trade mark infringement.

Lost is seeking a staggering $100m in damages, along with a prohibitive interdict preventing Lady Gaga from using the “Mayhem” trade mark.

Lost’s claims revolve around the alleged infringement of its Mayhem trade mark. Lost alleges that it has developed and built its brand around this trade mark since 1988, and holds a US trade mark registration for the word mark Mayhem.

Lost sported its Mayhem trade mark on apparel, accessories, and other lifestyle products, and took issue with Lady Gaga’s merchandising campaign, arguing that she has been trading in related goods under a confusingly similar trade mark, directed towards a shared consumer demographic.

Figure 1: Lady Gaga’s Mayhem logo (left) and Lost’s Mayhem logo (right) | Image credit: https://luxjuris.com/lost-v-lady-gaga-dispute-over-mayhem/

Lost alleges the Mayhem logo used by Lady Gaga is confusingly similar to its own. (See Figure 1) Lost argued that the close similarities amplified the likelihood of consumer confusion, particularly among the perceived demographic overlap between fashion-forward music fans and lifestyle brand consumers.

Figure 2: Apparel from Lady Gaga (left) and Lost (right) with the Mayhem logo | Image credit: https://www.framelegal.com/100m-trademark-dispute-lady-gaga-vs-lost-international/

The crux of the matter from a trade mark perspective is not the use of the Mayhem word mark on Gaga’s music album, or even her products, but rather the merchandising of an allegedly confusingly similar logo on identical products, which Lost feels is detrimental to the rights it claims to have established in its trade mark.

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Dealing with trade mark infringement under American law

The unauthorised use of a registered trade mark is dealt with in Section 32 of the Lanham Act, which prohibits use that is likely to cause confusion, mistake, or deception.

For this cause of action, Lost is relying on its rights in its word trade mark registration no. 4790623 Mayhem, for “beanies; caps; jackets; pants; sandals; shorts; t-shirts; tank tops”.

However, there are several other trade marks on the US Register owned by different proprietors that also incorporate the word Mayhem for similar goods. As a result, the exclusivity of the rights that Lost claims in the Mayhem mark may be more limited than it at first appears.

This opens up some defences for Lady Gaga, the most obvious one being the possibility of the Mayhem trade mark having become generic for apparel in class 25, as multiple trade marks have gone through to registration in class 25, all incorporating the word Mayhem.

Under California common law, like most common law systems, a trade mark owner can enforce rights based on prior use, even without a trade mark registration, to take action against infringing use by others.

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Despite owning the Mayhem word mark, the Mayhem logo is not registered in the US by Lost. As such, its only recourse would be a passing off claim. Lost must prove that it has acquired common law rights, which would prohibit Lady Gaga from using a confusingly similar trade mark in relation to similar goods.

Lost alleges common law rights through the continuous and exclusive use of “Mayhem” since 1988. The logo forms a major part of this use. With Lady Gaga’s logo also written in a melting, crescent shape, it will be interesting to see what defences her legal team will bring to the table.

One argument could be that there is no likelihood of confusion between the marks. This will be judged from the eye of the reasonable consumer.

Lady Gaga’s preferred course of action may be to rely on the differences in trade channels and assert that no likelihood of confusion exists by showing that the sales of Lady Gaga’s merchandise have almost exclusively taken place through her website.

It would be difficult for Lost to counter that someone who made it as far as the tour and merchandise pages on the official Lady Gaga website would have confused the site with Lost’s own website.

The limited platform for sale of Lady Gaga’s merchandise significantly closes the trading circles in which to create confusion, and restricts the opportunity to argue that the trade channel for Gaga’s merchandise was not specialised.

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Observations from the trade mark law perspective

While the outcome of this trade mark dispute is still pending, it has drawn global attention and has raised interesting points. Notably, it highlights two important considerations for those who want to build a brand of value in the globalised economy, be it a corporation, a new artist, or a seasoned international superstar:

1. The importance of securing trade mark registrations for your logos

Many trade mark proprietors protect their word trade marks and fail to consider the ramifications of not securing trade mark registrations for their logos.

To enjoy the full extent of protection of the law, a brand should be protected comprehensively. A registered trade mark serves as an intangible asset with its own market value and provides a presumption of ownership and exclusive right to the use of a mark.

Brand holders and aspiring faces of international brands are encouraged not to proceed under the notion that a word mark will provide sufficient cover for their brand identity, or that a mark will be protected because it has international presence and is “well-known”.

Proof of use of a trade mark for a prolonged period is usually required to establish rights in that trade mark. While unregistered well-known trade marks are usually afforded some key protections, establishing whether a trade mark is well-known carries its own strenuous evidential burden.

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2. The importance of conducting trade mark clearance searches

This case highlights the importance of conducting a trade mark clearance search before using a trade mark, to check for similar marks in every country of interest, whether you intend to apply for the registration of such a mark or simply use it in trade without a registration.

A clearance search could inform you of potential risks or potential defences for your use and registration. Confusion among consumers dramatically decreases as the difference between the products and services offered increases.

This means that a registered trade mark being used in relation to computer hardware may not necessarily bar you from using a similar or identical trade mark in relation to your dance studio or your latest podcast.

Conclusion

This epic battle between an immovable, long-cemented brand and an unstoppable pop culture icon will be closely followed by trade mark practitioners, business owners and entertainment industry professionals.

On the one hand the true value of decades of trade mark use and the building of a recognisable brand will be revealed. On the other hand, the ability to mix artistic ventures with commercial opportunity could be limited.

What this case reveals is the value of a registered trade mark, the consequences of not covering all possible bases of protection and the importance of taking proactive steps to protect your brand.

Not paying attention to these risks carries serious financial consequences. Will we witness an icon’s merchandising success being washed away by a tide of punitive financial awards? It’s a case that will have to be monitored closely.