The Gaga logo at the center of the lawsuit.
When you hear the name “Mayhem,” who do you think of? The answer to that question is at the center of an ongoing legal case, in which surfboard manufacturer …Lost is seeking to prevent Lady Gaga from selling tour merchandise bearing the name of her latest album because of its resemblance to one of the surf brand’s longstanding trademarks. Today, a judge’s decision dealt a major blow to …Lost’s case, but the fight isn’t over yet.
For surfers, the name “Mayhem” is synonymous with …Lost. The company has been using the iconic “Mayhem” logo since 1986, and since 1992 in commerce. Moreover, the name has been linked with …Lost founder Matt Biolos for even longer than that. It originated from a nickname of his, which itself came from a band he performed with in the ’80s called Mayhem Ordnance.
However, “Mayhem” also happens to be the name of Gaga’s seventh studio album. Released March 7, Mayhem made a number one debut on the Billboard albums chart. It included the popular singles Disease and Abracadabra, as well as the Grammy-winning Bruno Mars collaboration, Die With a Smile.
Later that month, …Lost sued Gaga for trademark infringement, claiming her logo is similar enough to theirs that it will cause confusion with customers – specifically with clothing and headwear sold as tour merch.
However, as the case has dragged on without a resolution, Gaga’s Mayhem tour continued, along with its merchandise sales. This led …Lost to file a preliminary injunction seeking to prevent Gaga from selling clothing bearing the Mayhem logo while the matter was still ongoing. In the motion, Lost argued that “Lady Gaga’s use of ‘MAYHEM’ on a commercial item, namely clothing, explicitly misleads consumers as to the source or the content of the mark and specifically, her nationwide concert will cause the consuming public to see …Lost’s mark and associate it with Lady Gaga.”
In order for that injunction to go through, …Lost needed to prove that Gaga’s use of her “Mayhem” logo “is either not artistically relevant to the underlying work or explicitly misleading as to the source or content of the work.” In that regard, Judge Fernando Olguin rejected the idea that Gaga’s album name was artistically irrelevant for her tour merch, and also said that …Lost had failed to provide evidence that Gaga was attempting to mislead customers into thinking they were buying gear associated with the company. As such, the motion was denied on Monday, December 15.
“We appreciate the Court’s consideration of our motion for preliminary relief,” wrote Biolos to The Inertia. “We understood, when requesting this motion, that we were asking for an early ruling on a high exposure, difficult matter. We hoped, but never really expected it to be granted. This was supposed to have been decided back in June, while the tour was still going and they were selling Mayhem tees and hats around the USA, but the L.A. fires backlogged our request, which is understandable.
“While we would have preferred a different outcome at this early stage, we respect the court and will be continuing this process. We now know we must go all the way with it.”
It is notable that this decision is not a final ruling on the case itself, which is still ongoing. However, Olguin’s response to the motion is certainly a setback for …Lost.
Still, Biolos has maintained that they will keep the fight going as long as they can. “The bottom line is the MAYHEM brand has been a key component of …Lost’s surf and lifestyle products for nearly 40 years, since I was in high school,” he added. “It’s recognized and respected around the world as a mark of excellence in design and performance. [Lady Gaga’s] use of it on apparel, with or without the obvious similarities in design, being sold in large mainstream markets, are attacks on our lifetime of hard work. Our federally (and globally) registered trademark reflects that long-standing use and the recognition we’ve earned with our customers.
“We built this brand through decades of dedication and we will not stand by while that work is appropriated for her commercial gain. Our commitment to protecting the MAYHEM trademark is a precedence. We won’t back down to her, or others.”
