The IP Runway: Issue No. 7
Intellectual property insights for the global business of fashion.
When Art Gets a First Amendment Shield Trademark Law Can’t Pierce
Edition seven is about a lawsuit that sounded straightforward and turned out to be anything but: can you sue a pop star for naming an album the same word your streetwear brand has used since the 1980s?
A California court just answered, for the second time, and this time it’s final.
The case, fast
Lost International is a California surf and streetwear brand that’s used the “Mayhem” mark since 1986, with a federal trademark registration covering clothing, t-shirts, beanies, jackets, since 2015.
In March 2025, Lady Gaga released an album called Mayhem and began selling matching merchandise ahead of her Mayhem Ball tour. Lost sued her that same month, seeking 100 million dollars and alleging trademark infringement, dilution, and unfair competition, claiming the stylized lettering on her merch was nearly identical to its own logo and would confuse fans into thinking the two brands were connected.
Gaga’s team called it “a transparent attempt to extract leverage and publicity” from a common word.
A word Lost had used for decades. A word Gaga used for one album. One court, asked to decide who actually owns it.
Why “similar” wasn’t enough
This wasn’t Lost’s first loss. In December 2025, the same judge, Fernando M. Olguin, denied Lost’s request to block Gaga’s merch sales entirely, finding little merit in the trademark claims. Lost amended its complaint and tried again.
On August 18, Olguin dismissed the case outright, with prejudice, meaning Lost cannot refile the same claims in that court again. The ruling turned on a specific, well-established test: the Rogers standard, which protects trademark use inside expressive works, like an album, unless the use has no artistic relevance or explicitly misleads consumers about who’s actually behind it.
Lost never seriously disputed that Gaga’s use was artistically relevant, an album title clearly qualifies. That left only the second half of the test: was it explicitly misleading. The court found it wasn’t. Simply using a similar-looking mark on similar goods isn’t enough on its own, the law requires something closer to an actual, affirmative claim of association. Lost, the court noted, couldn’t point to a single fan who was actually confused.
The same legal standard once protected a novelty pop song about a doll. It just protected an eight-time platinum album too.
Why this matters beyond one album title
Merchandise tied to creative work plays by different rules than ordinary retail goods. A T-shirt sold purely as a product and a T-shirt sold as merchandise for a song, film, or album aren’t judged the same way under trademark law, and brands suing over the second category face a meaningfully higher bar than they might expect.
“They used a similar name” is not the same claim as “they misled our customers.” This case is a clean, current illustration of that gap. Lost had a real, registered trademark, real decades of use, and still lost twice, because trademark law in this specific context isn’t asking whether names look alike, it’s asking whether anyone was actually deceived about who made the product.
This wasn’t a novel legal theory being tested for the first time. The same Rogers standard dismissed Mattel’s lawsuit against the band behind “Barbie Girl” back in 2002. Courts have had over two decades to apply this rule consistently, which makes Lost’s loss less of a surprise and more of a predictable outcome that three rounds of litigation didn’t change.
Persistence has limits when the underlying claim doesn’t improve. Lost amended its complaint, tried a second amended version, and still couldn’t clear the bar. The court explicitly declined to allow a fourth attempt, a reminder that repeated filings don’t fix a claim that was weak from the start.
Reading the runway
A brand with a real trademark, real history, and a real grievance still lost, twice, against one of the most famous names in music.
That’s not a story about Lost being wrong to try. It’s a story about how differently trademark law treats a product sold to make money versus merchandise tied to something genuinely creative. The distinction sounds technical. For anyone building a brand collaboration, a tour merch line, or anything adjacent to art, it’s the whole ballgame.
More soon.
The IP Runway
Sources: The Fashion Law, Bloomberg Law, Law360, and Billboard, reporting on Lost International, LLC v. Stefani Germanotta p/k/a Lady Gaga et al., US District Court for the Central District of California.
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