When a major artist releases a hit album, the merchandise that comes with it can be a lucrative business. T-shirts, hoodies, and accessories let die-hard fans display their support. But when album titles are used on merchandise, it creates a tricky legal situation where the First Amendment and trademark law collide.
Two recent high-profile lawsuits involving Lady Gaga and Taylor Swift highlight this tension and offer an insightful case study for product founders, creators, and brand managers.
Lady Gaga recently secured a full dismissal of a $100 million trademark lawsuit regarding her MAYHEM album merchandise, while Taylor Swift is currently engaged in an ongoing legal dispute over The Life of a Showgirl.
The central question in both cases is whether merchandise functions merely as a natural extension of an underlying artistic work or constitutes a separate, commercial source identifier.
The Lady Gaga Victory: How the Rogers Test Shielded Her MAYHEM Merch
Last year, California surf and lifestyle brand Lost International sued Lady Gaga for $100 million, alleging trademark infringement. Lost claimed that Gaga’s MAYHEM album and tour merchandise copied its long-standing “Mayhem” trademark, creating consumer confusion and falsely implying an affiliation with the surf brand.
The United States District Court for the Central District of California dismissed Lost’s lawsuit with prejudice, ruling entirely in Gaga’s favor.
The Court applied the Rogers test, a legal standard that balances trademark rights with First Amendment protections. Under the Rogers framework, an expressive work infringes a trademark only if:
- The use of the mark has no artistic relevance to the underlying work whatsoever, or
- It explicitly misleads consumers as to the source or content of the work.
The court held that Gaga’s use of MAYHEM on apparel was directly tied to her album and tour as an integrated expressive project. Because the merchandise was artistically relevant to her music and Lost failed to allege any explicit misrepresentation or affirmative statement claiming Lost endorsed the shirts, the First Amendment shielded Gaga from trademark liability.
The Taylor Swift Dilemma: The Life of a Showgirl and the USPTO Twist
While Lady Gaga prevailed early, Taylor Swift faces a more complex legal landscape.
Las Vegas performer Maren Flagg (who performs under the stage name Maren Wade) sued Swift in federal court over her album and merchandise title, The Life of a Showgirl. Flagg holds a registered federal trademark for Confessions of a Showgirl, which she has used for over a decade across live cabaret performances, books, and digital media.
Flagg’s suit relies heavily on a theory known as reverse confusion, arguing that Swift’s massive commercial footprint threatens to overwhelm her senior mark and lead the public to assume the original independent brand is an imitator.
Similar to Gaga, Swift’s legal team sought dismissal, contending that The Life of a Showgirl is an expressive work protected by the First Amendment and that the accompanying merchandise is a natural extension of her art.
However, Swift faces a hurdle that Gaga did not: a formal paper trail at the U.S. Patent and Trademark Office (USPTO).
Before the litigation escalated, Swift’s team attempted to register The Life of a Showgirl as an official federal trademark across multiple retail categories. The USPTO issued a preliminary refusal, citing a likelihood of confusion with Flagg’s pre-existing Confessions of a Showgirl registration.
Art vs. Brand: You Can’t Have It Both Ways
This procedural detail significantly alters the legal analysis.
Lady Gaga treated MAYHEM as an . Her merchandise promoted her album and tour, allowing her to invoke the First Amendment shield under the Rogers test.
Taylor Swift, by contrast, sought exclusive federal trademark protection for The Life of a Showgirl. By filing intent-to-use trademark applications, Swift’s team signaled an intent to use the designation as a commercial source identifier. Flagg is now leveraging those USPTO filings as evidence that Swift viewed the phrase as a commercial brand name rather than solely an artistic title. Furthermore, the USPTO’s initial refusal put Swift on notice that examiners identified a potential likelihood of confusion.
Under the Supreme Court’s Jack Daniel’s precedent, when a party uses a mark as a source identifier for commercial goods, automatic Rogers immunity gives way to standard Lanham Act likelihood-of-confusion analysis.
Key Takeaways for Entertainers and Brand Owners
Whether you are launching a product line, naming a media project, or dropping branded merchandise, these cases offer critical takeaways:
- Merchandise as an Extension of Expression Has Boundaries: Merchandise directly linked to an expressive work receives heightened First Amendment protection under Rogers. However, if merchandise is deployed as a standalone commercial brand, that threshold protection may not apply.
- Trademark Filings Alter the Legal Narrative: Filing a federal trademark application signals an intent to use the title as a commercial brand identifier. If the USPTO flags a likelihood of confusion, pushing ahead with commercial distribution opens the door to willful infringement claims—and severely weakens any later argument that your merchandise was merely an extension of your art.
- Beware of Reverse Confusion Risks: For global brands and high-profile creators, entering a market with a similar mark can quickly swallow a smaller, senior mark holder’s identity. Conducting thorough clearance searches before launching major campaigns remains essential.
Frequently Asked Questions
What is the Rogers test in trademark law?
The Rogers test is a judicial framework used to protect First Amendment expression in trademark disputes. It holds that using a trademark in connection with an expressive work does not constitute infringement unless the use has zero artistic relevance to the work or explicitly misleads consumers regarding its source or endorsement.
What is “reverse confusion” in a trademark lawsuit?
Reverse confusion occurs when a commercially powerful entity adopts a mark similar to one owned by a smaller, senior user. Because of the larger entity’s market saturation, consumers mistakenly believe the original, smaller brand is the copycat.
Protect Your Brand and IP Strategy
Navigating the intersection of creative expression, trademark clearance, and merchandise monetization requires a clear, proactive strategy. Whether you are building an e-commerce brand or securing intellectual property rights for a campaign, ensure your assets are fully protected. Contact Abrams Law today to schedule a consultation.
About the Author: This article was written by Courtney Abrams, Esq. Courtney Abrams is a trademark and e-commerce attorney and the founder of Abrams Law, a Phoenix-based boutique law firm focused on digital marketing, intellectual property strategy, and comprehensive brand protection for fashion/ lifestyle brands, content creators, and online shops nationwide.
Disclaimer: The information provided in this post is for general educational purposes only and does not constitute formal legal advice or establish an attorney-client relationship. If you need legal assistance securing your assets, please schedule a formal consultation directly with our firm.