Mayhem in the Marketplace: Lady Gaga and the Line Between Brand and Expression

When does a creative title become a trademark (or not)? In today’s entertainment industry, a title rarely stays in its lane. An album becomes a tour, a tour becomes a merchandising platform, and a creative identity evolves into a commercial brand. As creative works increasingly expand into broader commercial ecosystems, courts are more frequently asked to determine whether a designation functions as protected expression, a trademark or both.

In Lost International, LLC v. Germanotta, No. SA CV 25-00592 FMO (KESx), 2026 WL 2415514 (C.D. Cal. Aug. 18, 2026), a California federal court dismissed trademark claims challenging Lady Gaga’s use of MAYHEM for her 2025 album, tour and related merchandise. The significant aspect of the decision is not merely that Lady Gaga prevailed; rather, the court never reached a likelihood-of-confusion analysis. It first asked a more fundamental question – whether her use of MAYHEM was functioning as a trademark at all.

Why the Court Dismissed the Claims

Lost International alleged long-standing rights in MAYHEM, including a federal registration for apparel, and claimed consumers could believe its surf business was affiliated with or endorsed by Lady Gaga’s project. The court applied Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which protects the use of marks in expressive works unless the use has no artistic relevance or explicitly misleads consumers about source or content.

Because artistic relevance was not disputed, the case turned on whether Lady Gaga’s use explicitly misled consumers as to source. The court held that allegations of similarity, likely confusion and even intent to deceive were not enough. Lost had not alleged an explicit statement or overt claim connecting it to Lady Gaga’s album, tour or merchandise.

The Post-Jack Daniel’s Boundary

The decision applies an important limit identified in Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023): Rogers does not apply when the defendant uses the challenged designation “as a mark” for its own goods. The Ninth Circuit applied that distinction in Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022 (9th Cir. 2024), where Rogers was unavailable because the challenged term functioned as the defendant’s source identifier.

The practical question after Jack Daniel’s therefore is whether the designation is identifying an expressive work, identifying the source of goods or doing both. For more on the later proceedings in the Bad Spaniels dispute, see our prior discussion of the Ninth Circuit’s tarnishment decision.

Why the Merchandise Ruling Matters

The most notable aspect of Lost International is its treatment of merchandise. MAYHEM appeared on commercial products, including apparel, but the court did not treat merchandise as an automatic gateway to trademark use or conventional infringement analysis. Instead, the court recognized that commercialization and source identification are not synonymous, finding that the challenged use remained tethered to the larger album-and-tour project rather than the assumption that placing MAYHEM on apparel converted the title into a separate, source-identifying and competing trademark.

That distinction matters across entertainment, sports, gaming and media. Commercialization alone does not answer the trademark-use question. A term appearing on apparel may identify the source of the shirt itself, or it may merely serve an informational function by identifying the album, tour, film, game, team or other expressive work that gives the merchandise its appeal. The product remains the same; the legal significance of the designation does not.

Viewed this way, Lost International highlights a key tension in modern trademark law: When does merchandise merely remain an extension of an expressive work, and when does it become a source-identifying trademark? As entertainment, sports, gaming and media brands increasingly expand across multiple revenue streams, courts may be forced to confront that question more frequently.

What Trademark Owners and Creators Should Watch

The ruling shifts attention from product overlap and mark similarity to marketplace function. A plaintiff facing an expressive-use defense may need facts showing an affirmative claim of sponsorship, endorsement or affiliation, such as statements in advertising, licensing materials, packaging, collaborations or other branding architecture. Allegations of identical marks and overlapping goods may carry less weight when a defendant shows the challenged designation as part of a broader expressive enterprise and not a stand-alone brand.

The court also identified fair use and aesthetic functionality as alternative grounds supporting dismissal, underscoring that even if a plaintiff can overcome Rogers, long-standing limits on trademark exclusivity may still bar relief. If Jack Daniel’s taught that trademark law applies when a defendant uses a designation as a source indicator, Lost International highlights the inverse question: When does a commercially exploited name stop telling a story and become a source-identifying trademark, if at all?

Key Takeaways

• Merchandise does not automatically establish trademark use. Courts should ask whether the designation identifies the underlying creative work or the source of the goods.
• Branding context matters. Advertising, licensing, packaging, collaborations and sponsorship claims may determine whether a title functions as a mark.
• Clearance should anticipate expansion. A title may begin as expression and later extend into merchandise, tours, licensing and other commercial uses.
• Expressive-use cases require different evidence. Explicit claims of affiliation may matter more than similarity and confusion allegations.

Bottom line: Lost International suggests that courts will look beyond the mere appearance of a title on merchandise and focus instead on its marketplace function. As creative properties increasingly evolve into multiplatform commercial ecosystems, the fundamental question before analyzing likelihood of confusion is whether consumers encounter the designation as the name of a creative work, a source identifier or both.