About a decade ago, California surf company Lost International received trademark protection for the stylized “Mayhem” logo it uses on merchandise. So, when they learned that Lady Gaga would be using “Mayhem” in conjunction with her new album (it is the name of her album and tour, as well as serving as a logo on products she is selling), their legal counsel sent her a cease and desist. After Gaga continued using the mark, Lost hit her with a $100 million lawsuit in a California U.S. District Court.

Who is in the right here?

The Nuts and Bolts of “Mayhem”: A Lot to Unpack

This case has the potential to be a truly interesting one. Let us start with the facts that appear to be undisputed:

1. Lost International does hold a decade-old trademark for their “Mayhem” logo, a highly stylized design that they use on clothing and other merchandise. This trademark covers both the word and the design itself, and they say they have been using it on apparel since 1988. Regardless of the actual date this began, it is quite clear that they were using the mark long before Gaga started using it in conjunction with her album.
2. Lost’s claim covers trademark infringement for Gaga’s use of the “Mayhem” name and logo as well as Likelihood of Confusion, arguing that consumers may believe Gaga’s “Mayhem”-branded products are in some way affiliated with Lost.
3. At least 38 other active clothing trademarks exist that involve “Mayhem”. (i.e., Macon Mayhem, Florida Mayhem, Mining Mayhem, Madame Mayhem)

Number one would seem to be a point in Lost’s favor, as they have clear ownership of the mark and have been using it for far longer, which means they have priority under trademark law. 

The second point is a bit of a mixed bag. While it would be hard to argue against the complaint that the two “Mayhem” logos are quite similar (see image above), one wonders about the actual potential for confusion (or even crossover) between the two intended audiences – one, a niche clientele comprised mostly of surfers; the other the far broader community that makes up Lady Gaga fans. 

Finally, the third point would seem to be a potential problem for Lost, diluting their argument that they should have any kind of exclusive right over the use of “Mayhem” on apparel. Since so many other companies have used “Mayhem” as part of their trademarks, this essentially establishes that “Mayhem” is a weak mark in the Class for clothing.

Then there is the fact that a registered mark is meant to signify where the product bearing it originates – typically, what brand or company made the product. However, when creative works such as albums incorporate specific words or logos, it is generally understood that they are referring to the work itself. In other words, Gaga’s “Mayhem” is not branding for Lady Gaga, but rather for the album and the associated tour. Whether or not this distinction will come into play in this case remains to be seen, but it is a potential differentiator.

Lady Gaga Does Not Seem Worried – But Should She Be?

Here is a statement from the megastar’s legal team in response to the suit against her:

“Lady Gaga’s Mayhem soared to No. 1 and shattered records, a testament to her unmatched talent and global impact. It’s disappointing – but hardly surprising – that someone is now attempting to capitalize on her success with a baseless lawsuit over the name Mayhem. This is nothing more than an opportunistic and meritless abuse of the legal system.”

That does not sound like a group worried about the possibility of their client ending up on the losing end of a huge lawsuit – or even one where she settles for a lesser amount. There are numerous reasons why they might feel this confidence, not the least of which is the simple fact that her well-funded team is far more likely to win a war of attrition with Lost’s much smaller firm.

However, Lost International clearly owns the rights to the “Mayhem” mark, and the two logos are strikingly similar. If this case does end up going in Lost’s favor, it could result in a sea change regarding how artists like Lady Gaga are able to use marks and logos for transitory efforts such as albums and tours. Because of that, this is definitely a case worth following to see how the court rules. 

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