A California surf brand’s $100 million bet against Lady Gaga just crashed on First Amendment rocks.
On December 15, 2025, US District Judge Fernando M. Olguin denied Lost Surfboards’ request for a preliminary injunction that would have blocked merchandise sales tied to Lady Gaga’s “Mayhem” album and tour. The ruling landed a significant blow to the surf company’s trademark infringement claims, with Gaga’s lead attorney Orin Snyder of Gibson Dunn calling it a “total victory.”
Lost Surfboards, operating as Lost International, filed the lawsuit in March 2025, just as Gaga’s seventh studio album debuted at number one on the Billboard 200. The company claims it has used the “MAYHEM” mark since 1986 in connection with surf equipment and apparel, though USPTO records show the first commercial use as September 1988. Lost registered the word mark with the USPTO in 2015, covering clothing items like beanies, t-shirts, jackets, shorts, and sandals.
The stakes extend far beyond album branding. Gaga’s Mayhem Ball world tour, which launched in July 2025, has already grossed over $100 million in its North American leg alone. Merchandise sales represent a substantial revenue stream for major tours, and halting those sales mid-tour would have created significant financial damage. The album has spent 39 weeks on the Billboard 200, making the commercial footprint of “Mayhem” branding enormous.
The Rogers Test and First Amendment Defense
Judge Olguin’s ruling hinged on the Rogers test, a two-prong framework courts use when trademark claims collide with First Amendment protections for expressive works. The test originated from the 1989 case Rogers v. Grimaldi, where Ginger Rogers sued over a film title referencing her name. Courts have applied it consistently to balance intellectual property rights against creative freedom.
The first prong asks whether the allegedly infringing use has artistic relevance to the underlying work. Courts set this bar intentionally low. An album titled “Mayhem” with a matching tour, merchandise line, and visual branding clearly satisfies this requirement. Unless there is a complete lack of artistic relevance, the first prong passes. Gaga’s album explores themes of chaos and intensity, making the title a genuine artistic choice rather than an attempt to trade on Lost’s surf brand recognition.
The second prong examines whether the use explicitly misleads consumers about the source of the work. Judge Olguin found no explicit misleading here. Consumers purchasing Mayhem Ball merchandise understand they are buying Lady Gaga concert gear, not Lost Surfboards apparel. The word “explicitly” carries weight. Mere confusion possibility is insufficient. The defendant must have made an overt claim of sponsorship or endorsement by the trademark owner.
Lost attempted to argue that merchandise sold for profit should not receive First Amendment protection because its “dominant purpose” is commercial. The judge rejected this argument directly. When creative works incorporate third-party marks, the commercial aspects of that expression, including merchandise, can still receive constitutional protection. The ruling stated: “Because defendant’s use of the mark is artistically relevant and does not explicitly mislead consumers as to the source or content of the challenged work, the Lanham Act does not apply.”
One detail matters for trademark owners watching this case. Lost owns a word mark for “MAYHEM,” not a stylized design mark. The USPTO registration covers the word itself, plain and unadorned, for specific clothing categories. When maintaining strong trademark protection requires more than registration, the type of mark you hold shapes your enforcement options significantly.
Entertainment Industry Dynamics and Brand Conflicts
The album-to-merchandise pipeline is standard practice in entertainment. Major tours generate substantial revenue from branded apparel, and artists invest heavily in visual identities that extend across albums, tours, and consumer products. The Mayhem Ball’s $100 million North American gross demonstrates the scale of these operations. Concert merchandise typically accounts for 10-30% of tour revenue, making branding decisions high-stakes business choices.
Common words face a trademark crowding problem. A search of the USPTO database reveals 16 different active or pending federal registrations for “MAYHEM” across various industries. Surf apparel, music merchandise, energy drinks, fitness brands, and others all compete for rights to a single English word. This crowding limits any single owner’s ability to claim exclusive use, particularly when industries differ. The word itself is inherently weak as a trademark because it has dictionary meaning unrelated to any particular product or service.
Lost’s registration covers surf-related goods: beanies, t-shirts, jackets, shorts, sandals. The company built its brand within the surf community, where founder Matt Biolos has been known as “Mayhem” since his high school days. Pop music merchandise occupies a different market space with a different consumer base. A teenager buying a concert shirt at the Mayhem Ball is unlikely to confuse that purchase with surf apparel from a California board shaper.
Celebrity brand extensions continue to accelerate across industries, from fashion lines to beauty products to spirits. When artists like Gaga build visual identities around album titles, they invest millions in creative development, marketing, and merchandise production before any conflict surfaces. Lost’s lawsuit arrived after those investments were already locked in, after tour dates were announced, after merchandise was in production. That timing reality affects both the practical stakes and the legal calculus around injunctive relief.
The timing of Lost’s lawsuit created additional challenges. Filing in March 2025, just as the album launched, meant the “Mayhem” branding was already in full commercial motion. By the time Lost sought an injunction, the tour was underway and merchandise was selling worldwide. Earlier engagement, perhaps before the album release, might have produced a different negotiating dynamic. For brand owners, securing federal trademark registration across multiple classes before conflicts emerge provides stronger positioning than reactive litigation.
Preventive Strategies for Brand Owners
Both parties in this dispute could have positioned themselves differently. Their choices offer lessons for anyone managing trademark assets or launching branded products.
For entertainment brands planning album or tour launches, pre-release clearance searches identify potential conflicts before marketing investments lock in a name. Conducting a thorough trademark search before launch costs far less than defending against a $100 million lawsuit. Gaga’s team may have conducted such searches and determined the risk was acceptable given First Amendment protections. That calculated risk appears to have paid off.
For existing mark owners like Lost, several factors limited their enforcement options. Owning a word mark for a common English term provides narrower protection than a distinctive coined word or stylized design. Lost’s registration covered surf apparel specifically, not entertainment merchandise broadly. Expanding registration coverage to additional goods and services classes before conflicts arise strengthens enforcement positions.
Documentation consistency also matters. Lost claims use since 1986, but USPTO records show September 1988. Discrepancies between claimed use dates and documented evidence can undermine credibility in litigation. Maintaining clear records of first use, commercial activity, and continuous use supports enforcement efforts.
Monitoring programs catch potential conflicts before they escalate. Had Lost identified Gaga’s “Mayhem” album during pre-release publicity, direct outreach might have opened dialogue about coexistence or licensing before positions hardened. Once a $100 million lawsuit is filed, settlement dynamics change dramatically.
For common word marks, coexistence agreements often make more practical sense than litigation. With 16 MAYHEM registrations already in the USPTO database, no single owner controls the word absolutely. Negotiated agreements that define usage boundaries by industry, geography, or product category preserve rights without betting everything on judicial outcomes.
How I Help Protect Your Brand
Whether you are launching creative content that might intersect with existing marks, or you are a brand owner watching competitors enter your space, trademark conflicts can escalate from zero to $100 million faster than a viral album drops. Lost Surfboards built brand equity since the late 1980s, yet still faces an uphill battle when expressive works invoke First Amendment protection. Understanding where your trademark rights begin and end is essential before conflicts arise.
I guide clients through the trademark lifecycle: from initial clearance searches that identify potential conflicts before they become lawsuits, to registration strategies that build defensible portfolios, to monitoring programs that catch infringements early. When disputes emerge, I help clients understand their options and develop appropriate responses based on the specific legal landscape they face.
If you are planning a product launch, considering trademark enforcement, or facing a potential conflict, the time to act is before positions harden and legal fees mount. Contact me for a consultation to discuss how to protect your brand and address trademark challenges before they become expensive legal battles.
