Recently, a company called Lost International filed a lawsuit against Stephanie Joanne Angelina Germanotta, better known as Lady Gaga*, alleging that she had, with “blatant disregard,” copied their intellectual property. Here, we’ll examine the lawsuit, the underlying IP law, and venture some opinions about the lawsuit’s likelihood of success.

“I’m the Perfect Celebrity:” The Parties

Lost International is a surfboard manufacturer based in San Clemente, California. Its co-founder, Matt Biolos, began making surfboards in 1987, adopting the nickname “Mayhem,” which became the boards’ brand: that is, Lost sells surfboards “by Mayhem.”

Lady Gaga is, well, Lady Gaga—an Oscar- and Grammy-winning singer/songwriter/actress with a net worth of around $350 million, who has sold over 170 million records worldwide. Lost International has 375,000 followers on the social media site Instagram; Gaga has 82.4 million. Now, normally, one wouldn’t expect a surfboard company and Lady Gaga to be discussed together, other than that they both are located in California (Malibu and San Clemente are about two hours from each other). But these are not normal times.

In January of 2025, Gaga announced her new album, entitled “MAYHEM,” and shortly after she unveiled its cover art and announced a tour and merchandise, such as hoodies t-shirts, displaying the album name and style. The album released in March.

    

Lost is seeking $100 million dollars in damages from Lady Gaga. That means that Lost is claiming that Lady Gaga’s intentional use of the word “mayhem” has caused $100 million dollars worth of lost business and general financial and reputational damage to the surfboard company. In their complaint, Lost states that “This lawsuit arises from the blatant disregard by Lady Gaga of Lost’s rights to the mark “Mayhem” … [and that] Lady Gaga’s use of the Mark is confusingly similar to Lost’s Mark and is likely to cause and/or has actually caused confusion in the marketplace by creating false and mistaken impression that Lady Gaga’s album, tour, and clothing are affiliated, connected or associated with Lost, or that they originate with, or are  sponsored or approved by Lost.”(emphasis added)[1]

“Drawing ©ircles in the Sky”

Just to be clear, let’s start with what this case isn’t about. We’re not talking about a copyright infringement lawsuit, for the simple reason that common words and most typefaces can’t be copyrighted.[2] As a general rule, typeface, fonts, lettering, and calligraphy are not copyrightable.  It doesn’t matter how unique or creative or fancy the lettering is; if it’s just lettering it’s not protectable by copyright.[3] The words certainly may be, but the lettering isn’t.  So when you see a headline like this one,[4] you now know better and can feel free to say “Well, actually, it’s not really about copyright…”.

What we’re dealing with here is an allegation of trademark infringement. A trademark is generally a word, phrase, symbol, design, or a combination of those elements, that identifies and distinguishes the goods of one party from those of others.[5] The goal of copyright is to “promote the progress of the useful arts.” The primary function of trademark is to protect commercial transactions and help ensure the fair running of an open, competitive, capitalist economy.

“I’ll T-T-Take You to:” Trademark Law

Let’s quickly define what trademark law is. Essentially, it’s intended to serve two important purposes:

1. Protecting a mark-holder’s intellectual property from theft or dilution. “Counterfeiters can earn enormous profits by capitalizing on the reputations, development costs, and advertising efforts of honest manufacturers at little expense to themselves.”[6] Companies and creators put a lot of effort into making and branding their products, and for someone to be able to swoop in and slap a creator’s name on a shoddy imitation is just not right. And the potential damage isn’t  limited to the brand owner and the person who bought a counterfeit: other people who see the shoddy-but-branded product in the world will assume the brand is shoddy, further hurting the trademark owner’s reputation and sales potential.
2. Protecting consumers from fraud. When consumers decide what goods to buy, they should be able to rely on a company’s trademark and the quality that mark represents. Counterfeiting defrauds purchasers, who may be paying for brand-name quality but are getting a cheap knockoff. That’s why “consumer confusion” is one of the main things courts look for in trademark cases: does the infringement confuse consumers into thinking a copy is as good as the real thing?

“Shadow of a Man:” The Abercrombie Categories

One of the central cases in trademark law is Abercrombie & Fitch v Hunting World.[7] We don’t need to concern ourselves with the facts of that case here, but only mention it because it established some important rules for how judges should look at trademark lawsuits. Abercrombie established five specific categories of trademark, each of which receives different degrees of legal protection. Those categories are, in descending order of protection:

1. Fanciful: A mark composed of invented words. Fanciful marks are the most unique and creative, so they receive the highest presumption of legal protection. For example, Exxon, Xerox, and Clorox are fanciful marks.
2. Arbitrary: A mark that uses common words, but not connected to their characteristics. Apple computers, for instance.
3. Suggestive: A mark that uses words that suggest quality or some other characteristic. Examples include Netflix, Coppertone, Tesla, and Best Buy.
4. Descriptive: A term is descriptive if it conveys an immediate idea of the ingredients, qualities or characteristics of the goods. Hefty trash bags and Premium crackers, for example.
5. Generic: Identifies a product irrespective of its origin. Soap brand soap, for instance, or Computer brand computers. There is no legal protection for generic trademarks.

So where does “mayhem” fall on the Abercrombie spectrum? Well, it’s obviously not a made-up fanciful word. It’s not suggestive or descriptive of surfboards either, although it does sort of allude to a chaotic surfer culture. It’s also not generic, at least not in the Abercrombie sense. Most likely, a court would find that Lost’s trademark could be arbitrary, since the word “mayhem” is not directly associated with surfboards. As a general rule, arbitrary (and fanciful) marks are given the highest degree of protection by courts. 

“Do You See Me, Do You See Me Now:” Making the Case for Infringement

Once a court has determined the level of protection a mark is entitled to, it can turn to the basic things that must be proven by a trademark holder. To prevail in a lawsuit alleging trademark infringement, the plaintiff must show two things:

1. It is the owner of a valid and protectable mark; and
2. The defendant’s use of the mark creates a likelihood of consumer confusion.

In determining whether or not the plaintiff has proven those elements, the court applies a two-prong test:

1. Is the mark valid and distinct? and
2. Is there a likelihood of confusion?

To determine if consumers are likely to be confused by the two trademarks, a court will base its analysis on factors like:

• Strength of the mark;
• Similarity between the two marks;
• Similarity of the products or services;
• Use of the same retail outlets and purchasers;
• Kinds of advertising media used;
• Defendant’s intent; and
• Evidence of actual consumer confusion.

So let’s look at how these elements might factor in to this lawsuit.

“How Bad Do U Want Me:” How Strong is the Mark?

Lost absolutely holds two valid trademarks, with a first use in 1988. One is for surfboards, and the other is for accessories. Here’s the accessory registration as it appears in the US Patent and Trademark Office’s online database:

Notice that the trademark is registered to include items such as hats, t-shirts, and jackets, among other clothing items—the same types of items that are also typically sold by musicians at concerts.

But trademarking a word doesn’t mean that others can’t do the same for different, non-competing or non-confusing products. Here’s the first page of over 60 legitimate USPTO registrations for “mayhem”. Some are current and some have expired, but as you can see, “mayhem” is not limited to surfboard manufacturers.

For example, the word “mayhem” has been trademarked by a film production company for “production of motion pictures and television programs;” by a music publisher for “music publishing services and song publishing;” and by a trainer for physical fitness and conditioning instruction for individuals and groups. “Mayhem” has also been trademarked by companies for cybersecurity computer software; cornhole bags; eyeglass frames; archery arrows; insurance services; and a cigar tube manufacturer. The key is that none of the various registrations are for directly competing products or services. An obvious example is the word “dove” can be trademarked for both Dove ice cream bars and Dove soap.[8]

“No, I Can’t See Straight but the Feeling’s Right:” Consumer Confusion

Having determined that the mark is valid and registered, the court will turn to the other factor: is there a likelihood that consumers will be confused about the plaintiff’s mark, resulting in loss of revenue and reputational damage?

As mentioned, there are several factors the court will consider in making a determination of consumer confusion. Let’s consider each of those factors from the perspective of the plaintiff, and also venture a guess or two as to how a court might decide each one, based solely on Lost’s allegations.

• The strength of the mark

Lost has continuously used and renewed the “mayhem” mark since 1988. Neither Gaga nor Interscope Records registered the trademark “mayhem” in any form, for any products. I suspect a court would consider over thirty years of continuous use to represent a strong, valid mark.

• The similarity between the two marks

This is where it can get a little tricky, since so much depends on a judge’s determination of how much two marks look alike, and how much similarity is too much. In their lawsuit, Lost states that “The Mark, Mayhem, is identical on both Lady Gaga’s merchandise and Lost’s. The Mark in stylized form on Lady Gaga’s merchandise is substantially similar if not nearly identical to the Stylized Mark on Lost’s merchandise”[9] (emphasis added). Obviously both Lost and Gaga are using the same word, mayhem, so that’s pretty much 100% similarity. As we’ve seen, though, many different kinds of companies can trademark the same word.

That brings us to “the Mark in stylized form”—that is, the typeface it’s presented in. Just how similar are the two uses? Here are the uses side by side, with Gaga’s album title on the left, and Lost’s registered mark on the right:

 

And here are the marks displayed on clothing, again with Gaga’s merch on the left and Lost’s on the right:

A court, or an expert called by one of the parties, will compare the two marks and look for specific similarities that might confuse consumers, or specific differences that make confusion unlikely. So let’s briefly put on our judge’s robes and conduct a side-by-side comparison of the marks. So first, the two uses of “mayhem” are similar insofar as they use a comparable drippy gothic-style lettering common to horror movies; and they are both presented as an arc. On the other hand, Gaga’s “mayhem” is much less dramatically “drippy” than Lost’s; its arc is more shallow; and the letters themselves are more complex than Lost’s version. Lost’s mark is predominantly black, with a red outline, while Gaga’s is uniformly orange. If you were the judge, how similar would you find the two marks?

Let’s take another look at Lost’s registration. Note that the mark is registered in “standard characters without claim to any particular font style, size, or color.” That means that the sort of drippy gothic text style is not protected by registration, just the plain word, “mayhem”.

Companies can, if they choose, protect a specific style of presentation for their trademark. Coca-Cola, for example, has registered a trademark for the simple compound word “Coca-Cola,” as well as the universally recognizable script and text forms.

But specifying a particular look for a trademarked word means that other styles of presentation can be freely used by other people. By protecting the word “mayhem” in a neutral font only, Lost is seeking the widest possible protection. On the other hand, they are very clearly not protecting the thing they maintain will actaully be confusing to consumers: how much they claim the marks look alike. As we’ve said, this will be a judgement call for the court. While it’s my opinion that the stylized marks are not identical or so similar as to cause confusion, a judge might very well disagree.

• The similarity of the products or services

According to Lost’s lawsuit, “Notwithstanding Lost’s established rights in the Mark and Stylized Mark, upon information and belief, Lady Gaga adopted and used the Mark and a stylized version of the Mark substantially similar to the Stylized Mark in interstate commerce in connection with the sale and offering for sale of t-shirts, sweatshirts, and other merchandise related to the promotion of her album and tour titled “Mayhem.”[10]

Lost’s Mayhem-branded products include clothing items as well as surfboards. Gaga’s include clothing, concerts, vinyl records, CDs, and digitally-delivered music. Gaga does not sell surfboards or surfing-related products or services, but both parties sell caps, t-shirts, and hoodies. It will be up to the court to determine if that represents sufficient product similarity.

• Use of the same retail outlets and purchasers

Lost alleges that “Lost’s and Lady Gaga’s products have been and are likely to be marketed in the same or similar stores, channels, or outlets, and advertised in similar media.”[11] That is, to some extent, true.

Gaga’s albums are sold online and in brick-and-mortar stores all over the world, ranging from big-box retailers like Target to local record stores. Her merchandise is sold at live concerts, which take place in both the United States and internationally, and through online retailers. She has an “official store” online (at www.ladygaga.com) and on Amazon.com. Her customer base is made up primarily of fans of her music.

Lost’s surfboards and branded merchandise are sold through brick-and-mortar stores located only throughout Southern California[12], and by online retailers including Amazon.com. Their clothing products (but not surfboards) are sold through their website (www.lostenterprises.com).

While there is some overlap in some channels, I suspect a judge would find that the retail outlets and purchasers, while similar in some ways, are distinct between the parties.

• The defendant’s intent

On this factor, the lawsuit is very clear:

“This lawsuit arises from the blatant disregard by Lady Gaga…of Lost’s rights to the mark “Mayhem.” … Lady Gaga’s purpose in using the Mark was and is to deceive, mislead and confuse customers and the public into believing that Lady Gaga’s merchandise, album or tour are affiliated, connected or associated with Lost, or that they originate with, or are sponsored or approved by Lost.”[13]

Lost is arguing, and must demonstrate to a judge’s satisfaction, that Lady Gaga intentionally set out to lure Lost’s customers into buying her Mayhem-branded products. They must show that Gaga deceitfully tried to get Lost customers to buy her album and attend her worldwide concerts by tricking them into believing that her music was endorsed by a surfboard company. Given the disparity between the parties’ target markets and the difference in terms of global name recognition,[14] this argument seems likely to fail.

• Any evidence of actual consumer confusion

Lost’s lawsuit doesn’t specify any actual incidents of consumer confusion, and that’s OK, because plaintiffs are not required to demonstrate actual confusion, just support a claim of potential confusion. Nonetheless, the lawsuit states that

“Lady Gaga’s unauthorized use of the Mark and a logo substantially similar to the Stylized Mark in interstate commerce constitutes trademark infringement under 15 U.S.C. § 1114(1) and has caused and is likely to continue to cause consumer confusion, mistake, or deception”[15] and “The acts of unfair competition alleged herein are committed with oppression, fraud, and malice. Specifically, Lady Gaga used the Mark with knowledge that Lost owns the exclusive right to such use. Lady Gaga’s continuing use of the Mark was unauthorized and caused consumer confusion, resulting in continuing injury to Lost.”[16]

But as has been pointed out, confusion includes both actual purchasers as well as non-customers who see the infringing product out in public:

“Lady Gaga’s use of “Mayhem” and/or the infringing and identical mark used on her merchandise and album/tour advertisement is likely to create confusion concerning the origin of the goods that Lost provides under the Mark. Consumers viewing or becoming aware of the Mark will likely assume that the products that it represents is associated with the source of a difference product identified by a similar mark, namely, Lost’s Mark “Mayhem.”[17]

What that means is that when a Gaga-fan buys a Mayhem-branded hoodie at a Lady Gaga concert, random people who see them walking around wearing it will assume that it is a Lost product.

Let’s think about this for a moment. In essence, Lost is maintaining that Lady Gaga purposefully copied their “mayhem” logo in order to purposefully trick Lost’s actual and potential customers that her album, tour, and merchandise were associated with a surfboard company that endorsed her music. They are claiming that Gaga purposefully targeted people who buy surfboards, in order to trick them into buying her music and attending her tour. How realistic does that argument sound, really, to you?

“I’ve Become A Notorious Being”[18]

Lawsuits are serious business, and it’s interesting to note that the original drippy gothic “Mayhem” treatment Gaga used during the album’s launch has been largely replaced in marketing and promotional materials by a different font as the concert tour grows closer. That may well have been the marketing intention all along, or it may be a simple safeguard urged by legal counsel to limit damages should Lost’s lawsuit proceed.[19] Lost could still maintain that the use of the word “mayhem” was an infringement, but as we’ve seen here, without the possible similarities in font treatment it would be a more difficult achievement.

The most likely outcome of this lawsuit, as it is with most similar lawsuits involving musicians and claims of trademark or copyright infringement, will be that the parties settle for some dollar amount very significantly less than $100 million. That’s an outcome that Lost’s supporters will claim is a victory for the “little guy” against heartless musicians, and that Little Monsters can dismiss as a necessary business expense to get rid of a blatantly frivolous lawsuit that was nothing more than an attempt to surf on Gaga’s wave. So everybody wins.

 

 

 

*In the interests of full disclosure, the author is a longtime and enthusiastic Little Monster. Nonetheless, I will attempt to keep my personal musical preferences out of the analysis as much as possible.

[1] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/2, Page2 2, 10

[2] US Copyright Office, Circular 33: Works Not Protected by Copyright (rev 2021)

[3] 37 C.F.R. § 202.1(a), (e).

[4] https://parade.com/news/why-lady-gaga-latest-album-has-sparked-copyright-lawsuit

[5] https://www.uspto.gov/trademarks/basics/what-trademark

[6] S.Rep. No. 98-526, at 4-5, reprinted in U.S. Code Cong. & Admin. News at 3630-31 (1984)

[7] Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976)

[8] https://www.uspto.gov/trademarks/search/likelihood-confusion

[9] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/25, Page 6

[10] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/25, Page 8

[11] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/25, Page 12

[12] https://lostsurfboards.net/dealers/

[13] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/25 Pages 2, 10

[14] It seems at least equally likely that Lost stands to benefit much more than Gaga from confused consumers who purchase Lost t-shirts and hoodies, mistakenly believing them to be Lady Gaga’s promotional merch.

[15] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/25, Page 9

[16] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/25, Page 19

[17] Case 8:25-cv-00592-FMO-KES Document 1 Filed 03/25/25, Page 12

[18] Lady Gaga, “Perfect Celebrity” from MAYHEM. All the main headings in this post are titles or lyrics from the MAYHEM album.

[19] The font is still used on Gaga’s store and merchandise for sale there.