Overview:
Lost International LLC v. Germanotta (aka Lady Gaga) shows the intersections of music, merchandising, fashion branding, and intellectual property protections. How might consumer surveys be used to quell IP mayhem?
Where Fashion Branding Meets Merchandising
Music and fashion intersect frequently. Musicians generate substantial revenue from branded merchandise, well beyond buying concert tees. How branded merchandise is protected is complex, and often results in disputes about what can and cannot be protected. A recent dispute arose between Lady Gaga and Lost Surf regarding the name of–and merchandise for–Lady Gaga’s Mayhem tour.
Lady Gaga generates substantial revenue from non-music offerings, including merchandising and fashion branding. Her Mayhem Tour is expected to yield up to $100 million in tickets and merchandise sales. Lost International is a California-based surf and streetwear brand that has been using a stylized “Mayhem” mark since at least 1988 in connection with surfboards, apparel, and accessories.
Lost filed a trademark infringement suit against Lady Gaga, arguing the tour’s stylized “Mayhem” logo is confusingly similar to its trademark for surf-related apparel, which also uses a stylized version of the word “Mayhem.” It argues that consumers will be misled into believing that the two businesses are the same or related, leading to consumer confusion and brand dilution. Lost is seeking $100 million in damages and an injunction against Lady Gaga’s use of the stylized “Mayhem.”
For these claims, the central question for courts to decide is whether consumers will be confused. To help prove their cases, either party may use consumer surveys measuring the likelihood of confusion and/or the likelihood of dilution.
Surveys Strike the Right Chord
Employing surveys in either party’s legal strategy could strike the right chord in court. The Lost team could submit a survey showing a likelihood of consumer confusion or a likelihood of trademark or brand dilution. In either case, the survey’s results could help prove the company’s case. Because a showing of fame is required for a successful dilution claim, Lost might also consider commissioning a fame or awareness survey. Lady Gaga’s team could also commission a survey, including a survey that shows little to no confusion or dilution, or a survey showing that Lost’s MAYHEM mark is not famous, which would prevent Lost from claiming dilution. Either side could provide a report rebutting a survey from the other side. When millions are at stake in a high-stakes trademark dispute like this one, both sides may use surveys to provide evidence that helps their cases.
If you are looking for reliable consumer survey research, reach out to MMR Strategy Group, an IMS Legal Services Company.