Lady Gaga Suit: Don't Trademark Common Words

Key Takeaways

• Trademarking common dictionary terms is legally fragile and can lead to you paying the opposing party's legal fees if a judge deems the lawsuit meritless.
• You must prove 'secondary meaning', that customers associate a common word specifically with your brand, to successfully defend a generic trademark in court.
• Registering a business name with your Secretary of State doesn't grant you nationwide trademark rights or the right to sue others for using similar terms.

Lady Gaga just secured a court order requiring a small surf brand to pay $250,000 of her legal bills after a failed trademark dispute over the word 'Mayhem.' The brand, which held a trademark for the word on clothing, sued the pop star for using the term to describe a specific collection, but the court dismissed the case and slapped the plaintiff with the quarter-million-dollar bill as a penalty for what Gaga's team called a publicity stunt. You can read the full breakdown of the Billboard report here.

For most small business owners, this is a loud warning: owning a trademark on a common word doesn't give you a blank check to sue everyone else who uses it. In fact, if you try to gatekeep a dictionary term without massive proof of market dominance, you aren't just going to lose the case. You might lose your entire business paying for the other guy's lawyer.

The Lethal Cost of 'Generic' Branding

Trademarks exist on a scale from 'fanciful' (made-up words like Kodak) to 'generic' (common words like Apple, but used for fruit). When you pick a common word like 'Mayhem,' 'Apex,' or 'Summit' for your company name, you're starting the game on hard mode. The U.S. Patent and Trademark Office (USPTO) explicitly warns that descriptive or generic marks are the hardest to protect. The surf brand in the Gaga case found out that even if you have a registered mark, you cannot prevent others from using that word in a descriptive or non-competing way. When the court decides a lawsuit was 'exceptional'. Meaning it was particularly weak or brought for the wrong reasons, federal law allows the judge to shift the entire cost of the defense onto the person who filed the suit. For a business doing a few million in revenue, a $250,000 surprise bill is a terminal event.

How to test your name's strength

• Search the TESS database: Before you print a single shirt or sign a lease, search the USPTO Trademark Search system for your intended name and all similar variations.
• Evaluate 'Likelihood of Confusion': The law doesn't care if the names are identical; it cares if a customer would be confused. An HVAC company named 'Flow' and a plumbing company named 'Flo' are likely to trigger a dispute.
• Check the 'Fair Use' defense: You can't sue a competitor for using the word 'mayhem' in a sentence to describe their product features, even if you own the brand 'Mayhem.'
• Consult an IP attorney: Spending $2,000 on a formal trademark search and opinion letter now is significantly cheaper than a $250,000 judgment later.

Why 'Mayhem' failed in court

• Descriptive vs. Source-identifying: Gaga used the word to describe a vibe or a specific set of products, not as a brand name that would confuse a consumer into thinking she was selling surfboards.
• Lack of Secondary Meaning: To protect a common word, you have to prove that when people hear it, they think of you first. If you haven't spent millions on advertising, you likely don't have this level of protection.

Pick a name that doesn't require a dictionary to explain.

If you're currently operating under a generic name, don't rush to the courthouse the moment a competitor uses a similar word. Instead, focus on building a unique logo and trade dress that you actually can protect. Your first move this week should be to audit your current brand assets. If your entire identity relies on a single common word, consider adding a unique, 'fanciful' prefix or suffix to your brand to give your legal standing some actual teeth. This process takes about two hours and can save you years of litigation.

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📋 Disclaimer

This article is for informational purposes only and does not constitute legal, tax, financial, or professional advice. Laws and regulations change frequently, and the information presented may not reflect the most current legal developments. Always consult with a qualified professional (CPA, attorney, financial advisor) before making business decisions based on this content. MyBizNerd may receive compensation through affiliate links, but this never influences our recommendations.

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