The BeachGrit community forever enshrined in annals U.S. legal history.

There have been new developments in the Lost v. Lady Gaga lawsuit, and they are developments that I admittedly did not foresee. I can’t believe that I am saying this, but BeachGrit itself may be determinative of the outcome of Lost’s motion for a preliminary injunction (read my prior article if you want an explanation of what that is) that Lost filed a few weeks back. Incredibly, my prior article and the below-the-line comments were included in the briefing on both sides.

This is not a joke, and it should suffice to say that this is absolutely wild.

Even wilder is the fact that it was Lost’s own attorneys who submitted the prior article as an exhibit in support of the motion and presumably thought that was a good idea. That particular exhibit isn’t even specifically cited to within Lost’s memorandum in support of the motion, so it begs the question as to why any lawyer(s) in their right mind would submit an exhibit that contained a bit of a blueprint for picking apart their own client’s arguments. The general notion of “don’t introduce evidence that is bad for your case” is How to Be Lawyer 101, so I’ve no idea why Lost’s attorneys thought that making an issue of the prior article would benefit their client in any way. Though I think that Lost is going to lose this motion independent of that, decisions like this are the stuff of legal malpractice lawsuits.

As one would expect, Lady Gaga’s attorneys absolutely pounced on this within their opposition, and so much so that the prior article is a key feature of Lady Gaga’s opposition brief, which even includes a comment by the well-regarded Sup Braj embedded into the brief itself.

Let’s unpack this with a little more specificity.

Within the opposition’s introduction (specifically page 1 at lines 15 – 20), Lady Gaga’s attorneys argue with specific reference to Lost’s own exhibit attaching the prior article as follows:

Lost cannot show that any actual consumer would be confused enough to buy the wrong product—a fatal defect under any trademark theory. Its own filing concedes that even surf enthusiasts, Lost’s core market, understand there is no conceivable connection between the brands:

“[N]ot even a moron in a hurry would confuse these two brands.”
(Dkt. 15-4 at 170.)

Later within the brief, Lady Gaga’s attorneys even rely on our community’s below-the-line commentary at page 2, lines 4 – 13 of the opposition:

Lost has not identified a single customer who has been misled or has declined to purchase Lost products due to any alleged confusion. To the contrary, Lost’s own evidence confirms that even within its core customer base, there is recognition that no connection exists between Lost’s niche surf brand and Ms. Germanotta’s globally recognized music and merchandise, as demonstrated by one commentator’s sarcastic response to Lost’s case:

(Dkt. 15-4 at 178.)

You heard it right. BeachGrit and its esteemed commentariat are now highly relevant to what Lost has alleged to be a $100 million case.

The remainder of Lady Gaga’s opposition hits all the same points mentioned within my prior article in addition to making some First Amendment fair use arguments, including the fact of the Norwegian black metal band Mayhem’s existence since 1984. This inclusion warms the cockles of my heart in particular, as I really think that the Central District of California’s panel of judges need more black metal in their lives.

Lost understandably tries to downplay these points within its reply brief, responding by arguing that even if some of its core customers aren’t confused, that doesn’t mean that the rest of the customers won’t be. At page 12, lines 14 – 20 of Lost’s reply brief, Lost’s attorneys argue as follows:

Lady Gaga argues that comments on articles produced by Lost indicate that there are some consumers who are not confused. Dkt. 19 at 7, 17. However, the likelihood of confusion factor does not require that all people be confused, but evaluates whether confusion among consumers is likely, which Lost has certainly demonstrated throughout its Motion. The likelihood of confusion is not negated by the handful of people who will not be confused, especially the ones commenting on a post after reading the article about the dispute.

This is not particularly compelling given that Lost didn’t submit any actual evidence of consumer confusion within its moving papers. I would have just argued, “well, the author of this article that we probably shouldn’t have attached as an exhibit states that he’s a lawyer with trademark experience, so of course he’s not going to be confused.”

Lost also responds to the black Metal Mayhem argument by castigating the band, and indeed all of Norway, as a Norwegian band that has no worldwide market or fanbase on the mere account of the fact that they are from Norway. To wit, Lost’s attorneys argue as follows at page 4, lines 1 – 7 of their reply brief:

The Norwegian heavy metal rock band called “Mayhem” may have toured in the U.S. but certainly has a more prominent influence outside the United States where it originated and its mark is arguably unreadable. See Dkt. 19 at 5.

I’d be pissed if I were Norwegian, but then again, this probably wouldn’t bother an actual Norwegian—they are a bit of an unflappable lot. In any event, I can absolutely guarantee you that there are more fans of the black metal band Mayhem, both worldwide and within the United States, than there are Lost customers.

Right now, the Court has taken Lost’s motion “under submission,” which means that it has decided that it does not need to hold a hearing to hear oral argument on the motion and will decide everything based on the papers. This is not good for Lost, because having read the motion, the opposition, and the reply, I would be shocked if Judge Olguin grants Lost’s motion.

I will keep my eye on the docket and report back once there is a written order.

Regardless of the outcome though, this means that there is a good chance that there will be a published United States Federal Court decision specifically citing to BeachGrit and its community, and in a lawsuit that is undeniably the most high profile lawsuit involving surfing to date.

And if you don’t think that’s awesome, then you need to go to awesome school.

"Well it hit me off the entirely off the board then I was in the water, looking back and I remember seeing the black eye and teeth..."

There’s cool and then their is Jens Heller cool. But let us quickly make our way to greater San Francisco and its colder, sharkier waters. Specifically let us go to Montara State Beach where we find the German scientist (I think) there on the sand fresh after a shark attack. But imagine it was you having just escaped from the jaws of great white death. How would you behave? Frantic? Wildly emotional? Stomach sick?

Or like Deutsch James Dean?

Powerlines Productions captured the moment, cameraman approaching Heller and his newly chewed board and asked him what happened.

View this post on Instagram

A post shared by POWERLINES PRODUCTIONS (@powerlinesproductions)

“I was sitting on my board, actually, then I felt something under my foot kick me off the board. I looked back and saw this big mouth grabbing on to my board, it bit here and here you can see the mouth…”

Cameraman cutting in, “Dude, did it hit hard?”

Heller responding calmly, “Well it hit me off the entirely off the board then I was in the water, looking back and I remember seeing the black eye and teeth of the shark then I just tried to grab my board as fast as possible and come back in. There were two other guys out, close by, who also paddled back in. One of them said it was a 10-foot shark. His guess. I only saw the face so I can’t truly tell. And I was full of adrenaline.”

Cameraman wondering, “How do you feel now?”

Heller, smiling wryly, answering, “Now I’m good. Now I’m good. Once I was out of the water I felt better. It felt like I couldn’t paddle fast enough. Like, I’m in slow motion when I was trying to get away, thinking, ‘The shark will be so much faster than me, if he really wants to get me… he’ll definitely get there.”

Cameraman, reexamining the board, sharing, “A friend of ours that happened to. He says now every day is a blessing.

Heller, shrugs, “Yeah, I guess. It’s my lucky day, I guess.”

Wow.

Teutonic John Travolta.

Watch full clip here.