Lost International LLC v. Germanotta (aka Lady Gaga), alleging trademark infringement, puts issues around consumer product branding, commercial branding, merchandising, and trademark law on center stage.
Fashion Branding and Merchandising
Music, fashion, and the arts historically overlap. Artists extend their brands through apparel, accessories, and collaborations, and for many performers, merchandise now represents a significant share of total earnings. Lady Gaga’s Mayhem Tour, which was projected to generate as much as $100 million in ticket and merchandise sales, shows how lucrative the intersection can be.
Lost International LLC is a California-based surf and streetwear company known for its stylized “Mayhem” mark, which has been used since 1988 on surfboards, apparel, and accessories. Lost filed a trademark infringement suit alleging that the tour’s stylized Mayhem logo is confusingly similar to its own.
The complaint alleged that Lady Gaga’s use of the Mayhem mark misled consumers into believing there is an affiliation between the two brands, and dilutes the Lost brand. The company is seeking $100 million in damages and an injunction to prevent further use of the Mayhem name.
A Chorus of Potential Consumer Confusion
Fundamental questions in trademark disputes can be addressed using consumer perception research. One such question--are consumers likely to be confused or misled by the use of the mark?--features in this dispute as well. Well-designed consumer surveys can provide insight into whether the public perceives a relationship between two marks. In this case, litigators on either side of dispute may use survey evidence to demonstrate:
- A likelihood of confusion survey, measuring whether consumers believe Lost and Lady Gaga’s merchandise originate from the same source or are affiliated.
- A likelihood of dilution survey, measuring whether the use of the Mayhem mark by Lady Gaga’s tour weakens the distinctiveness or reputation of Lost’s mark.
- A fame or awareness survey, which establishes the level of recognition that Lost’s mark enjoys among relevant consumers, which supports a dilution claim.
Either party may also introduce rebuttals to challenge the opposing side’s survey design, methodology, or conclusions.
Consumer Surveys Strike a Chord
Litigators on both sides of trademark disputes such as Lost International LLC v. Germanotta frequently use consumer survey evidence as part of their litigation strategy. Properly conducted, methodologically sound surveys yield consumer perception insights and evidence supporting legal claims.
When entertainment and fashion branding overlaps, it can cause conflicts. Courts frequently consider likelihood of confusion, likelihood of dilution, and fame and awareness surveys as evidence in trademark infringement disputes. A name, logo, or mark can be both an artistic expression and a multimillion-dollar asset worth protecting. Contact IMS Legal Strategies if you are involved in a trademark dispute requiring consumer surveys.
