Even if children could not resist to the cute little monster called Lady Goo Goo with her pink stroller and silk diapers, Lady Gaga did not speak out for this eccentric cartoon character.
The disenchanted love story between the two ladies is born from the release of “The Moshi Dance” song by Moshi Monters, an online game and children’s social networking site operated by the company Mind Candy Ltd. The disputed lullaby is sung by a baby cartoon character wearing big sunglasses and blond hair styled in a reminiscent way of the famous pop star Lady Gaga. Among the other characters promoted by Mind Candy, Lady Goo Goo’s was the most popular. The huge success encountered by the pop song after being posted on YouTube, led the company to contemplate the sell of this one on iTunes.
This intent was overtly too much for Ate My Heart Inc, the corporate entity controlled by Lady Gaga, which filed an interim injunction application in the UK to prevent Lady Goo Goo from singing the disputed modern nursery rhythm. To make the cartoon baby stop dancing, the claimant grounded its request on its two LADY GAGA trademark registrations for, among other things, “sound and video recording” in class 9, “Entertainment and education services” in class 41 and “Streaming of audio and video material on the internet” in class 38. Thus, there was, on claimant’s opinion, a risk of confusion between the Lady Gaga trademarks and the Lady Goo Goo sign (See Article 5(1)(b) of the Trade Marks Directive (2008/95 EC)[1]).
Applying the average user test, the England High Court of Justice held that the relevant consumers likely to encounter the disputed song were 6-12 years old and found that such a young audience might believe that Lady Gaga and Lady Goo Goo were linked. Even if a proportion of the public was able to distinguish the pop star from the cartoon character, the judge still considered that there were possibilities that those consumers thought Lady Gaga and Lady Goo Goo to be connected. Notably because: ““Goo Goo” and “Ga Ga” are both noises made by babies, Lady Gaga has developed her reputation in the music field, Lady Gaga uses the term “Little Monsters” to refer to her fans on Twitter and finally, the defendants have themselves tagged their YouTube song so that it would appear as a result when the word “Gaga” and “Monsters” were used together as search terms (See paragraph 55-58 of judgment[2]).
The Court also found that the use of Lady Goo Goo traded on the reputation of the celebrity as the LADY GAGA trademark enjoys a “huge reputation”. In addition, the judge, considering the approach in Interflora Inc v Marks & Spencer Plc [2009] EWHC 1095 (Ch), 2009 E.T.M.R. 54, held that the use of Lady Goo Goo in the music field and the way this animated cartoon baby imitates Lady Gaga could not only give rise to a link with the famous singer but also impact on the reputation, lead to the dilution or a risk of tarnishment of the LADY GAGA trademark.
Consequently, the High Court of Justice granting the claimant’s application for an interim injunction decided to prevent Mind Candy from promoting the Moshi Dance on YouTube and iTunes.
It is worth knowing that the defendants use to operate in the Moshi Monters game, other characters based on current celebrities among which Broccoli Spears, the Goo Fighters, 49 percent and Hairosmith. Instead of looking for an artist career on its own in the lucrative music market, it seems that Lady Goo Goo should have stay with them in the game!
[1] Trade Marks Directive (2008/95 EC), Article 5(1)(b): “The proprietor [of a registered trade mark] shall be entitled to prevent all third parties not having his consent from using in the course of trade: any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association between the sign and the trade mark”.
[2] Ate My Heart Inc v. Mind Candy Limited [2011] EWHC 2741 (Ch) – 10.10.11