Music, Merchandise, Mayhem: Lady Gaga sued by a Californian surf brand for infringement of its MAYHEM trade mark

A bit of a “mayhem” happening on the other side of the Atlantic Ocean reminds us of the importance of Intellectual Property rights, including trade mark protection, in the music industry.

Background

Earlier this year, Lady Gaga announced “The Mayhem Ball Tour” on her social media accounts, including a series of concerts across Europe and North America to follow up the release of her hit album “Mayhem”. Californian surf and streetwear brand Lost International (“Lost”) filed a complaint against the singer for infringement of its MAYHEM trade mark in the Central District Court of California.

In its complaint, Lost not only made allegations of “wilful and blatant” trade mark infringement, the company also alleged issues of false advertising, trade mark dilution, unfair business practices, and unfair competition.

Alleged infringement

Lost is the owner of the word mark for MAYHEM, registered in the United States for goods including t-shirts, beanies, and jackets. Lost claim that Mayhem, the nickname of its co-founder Matt Biolos, is synonymous with the brand’s image and is widely and favourably recognised by the public. Lost alleges that Lady Gaga has, by affixing the mark to her tour and album merchandise, infringed that mark.

While Lost does not own any figurative mark relating to MAYHEM, it has been selling clothing and accessories under the stylised version as shown below.

Lady Gaga’s logo shown on t-shirts, sweatshirts, and other merchandise related to the promotion of her album and tour titled MAYHEM is featured below.

Lost argues that both marks are substantially similar. Lost argue that Lady Gaga was fully aware of Lost’s ownership of the MAYHEM mark following her receipt of a cease and desist from Lost, which they state was not complied with. They allege that Lady Gaga has continued to advertise and sell products bearing the Mayhem mark “with the intention of misleading, deceiving, or confusing consumers as to the origin of the goods and of trading on Lost’s reputation and goodwill”. Lost claims that it has suffered and continues to suffer irreparable loss of income and goodwill as a result of Lady Gaga’s actions.

Lost further asserts that Lady Gaga’s use of the mark was likely to or has actually caused a mistaken impression amongst consumers that Lady Gaga’s merchandise, album, and tour are associated with, sponsored by, or approved by Lost.

Lost has requested - amongst other declaratory and injunctive reliefs - an award of damages at a minimum amount of $100 million.

Food for thought

From a UK perspective, the amount of damages requested by Lost seems quite high. As a comparison, Lost’s MAYHEM branded apparel is listed on its website at prices around $24 - $75; Lost’s minimum requested damages amount would represent some 3 - 3.5 million sales of its MAYHEM branded t-shirts.

Lady Gaga’s legal team seem unphased by the threat of litigation, with attorney Orin Snyder deeming the lawsuit – as reported by some newspapers – an unsurprising result of the global success of Lady Gaga’s latest album.

However, regardless of the talent, success, or global fame of an alleged infringer, trade mark owners are fully within their rights to protect the marks that they have registered.

As music artists face a squeeze on royalty revenues from streaming platforms and instead turn their focus on lucrative merchandising and tour projects, IP scuffles between global music icons and brand owners may become a more frequent occurrence.