Lost International, LLC v. Germanotta

District court dismisses trademark infringement suit brought by surf and lifestyle brand against Lady Gaga, holding that plaintiff failed to sufficiently allege that Lady Gaga’s use of “Mayhem” mark on merchandise explicitly misled consumers.

Plaintiff Lost International LLC, a surf and lifestyle brand, brought suit against Stefani Germanotta, professionally known as Lady Gaga, and Bravado International Group Merchandising Services, for federal trademark infringement, common law trademark infringement, false designation of origin, violation of California’s Unfair Competition Law and common law unfair competition for her use of the word Mayhem on merchandise related to her 2025 album titled Mayhem and the tour of the same name. Plaintiff alleged that it had for over three decades sold surfboard, surf equipment, clothing and accessories bearing the alleged mark “Mayhem” and that it owned trademark rights in “Mayhem” for the sale of merchandise. Prior to the release of her album, Lady Gaga and Bravado began selling clothing and accessories prominently displaying the word “Mayhem.” Plaintiff alleged that defendants sought to “misappropriate the MAYHEM® name, trademark, and stylized mark by releasing an album entitled ‘Mayhem,’ launching a tour with that same name, and selling clothing and accessories with that name.”

Defendants moved to dismiss, arguing that the complaint failed to state a claim under the Second Circuit’s test from Rogers v. Grimaldi. The Rogers test determines whether an expressive work can be subject to a valid claim under the Lanham Act. Under the burden-shifting Rogers framework, the defendant must show “that its allegedly infringing use is part of an expressive work protected by the First Amendment.” The plaintiff then bears the burden to show that “the defendant’s use of the mark (1) is not artistically relevant to the work or (2) explicitly misleads consumers as to the source or the content of the work.”

Plaintiff did not dispute that defendants’ use of the alleged mark was artistically relevant to an expressive work. To state a valid claim, plaintiff had to show that defendants’ use of the alleged mark explicitly misled consumers.

The court held that plaintiff’s allegations were insufficient to constitute explicitly misleading conduct. Although plaintiff alleged that defendants had “the intention of misleading” and “intended to implant a false understanding among consumers,” those were merely “conclusory” allegations. The operative complaint contained no plausible factual allegations establishing an “explicit indication, overt claim, or explicit misstatement” identifying plaintiff as the source of Lady Gaga’s work. In the absence of specific factual allegations of an affirmative misrepresentation, the Rogers test barred plaintiff’s Lanham Act claims as well as the related state law claims. Accordingly, the court dismissed the complaint in its entirety without leave to amend.

Summary prepared by Todd Densen and Keane Barger