Did Madonna infringe the Girls Gone Wild video series trademark by recording a song with the same name?  Probably not, but (with the typical lawyer disclaimer) it depends.

Girls Gone Wild is a video series where young women (usually at Spring Break or Mardi Gras parties) agree to be filmed stripping or flashing.  Madonna, halftime entertainment at last night’s Super Bowl XLVI, has a song on her latest (unreleased) album entitled “Girls Gone Wild.” The owner of the Girls Gone Wild trademark for adult videos and related products sent a cease and desist letter this week warning Madonna not to sing this song at the Super Bowl.

Is this trademark infringement?

First , song titles are not trademarks and cannot be registered as such.  To act as a trademark, a term must be used to identify the source of goods or services (i.e., FORD for trucks or CHILI’S for restaurant services).  A song title doesn’t typically do this.  Sometimes, the song title can be the subject of copyright protection, but generally a title is considered too short and unoriginal to be an “original work of art” that is subject to copyright protection...

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