Taylor v. Killer Queen

Court: Hon’ble High Court of Australia

Citation: [2026] HCA 5

Date of Judgement: 11^th March 2026

Judge: Chief Justice Gordon A, Justice Steward, Justice Gleeson, Justice Jagot, and Justice Beech-Jones

Facts

Katy Perry (born Katheryn Hudson) (“Katy Perry), an American pop megastar best known for her hit songs “California Gurls”, “Hot n Cold” and “I Kissed a Girl” lost a trademark battle recently against Katie Jane Taylor (born Katie Jane Perry) (“Ms. Taylor”), a Sydney based fashion designer.

Ms. Taylor had launched a clothing business in Australia under the brand name “Katie Perry”. She secured a word mark registration for her clothing business on 29^th September 2008 (which served as the priority date). Later, in October 2008, Katy Perry opened an online merchandise store under her stage name “Katy Perry”. While Katy Perry’s mark was registered in Australia on 26 June 2009, under Class 9 (recordings) and Class 41 (entertainment), it was notably not registered under Class 25, which covers clothing.

In 2019, Ms. Taylor initiated trademark infringement proceedings against Katy Perry. The latter then responded with a crossclaim, contending that her stage name “Katy Perry” had acquired a significant global reputation, which extended to all classes, including clothing merchandise. Katy Perry argued that the use of a deceptively similar name by Ms. Taylor was likely to confuse consumers, and thus she sought cancellation of Ms. Taylor’s registration.

The primary judge rejected Katy Perry’s cross claim and allowed Ms. Taylor’s infringement petition. The Full Federal Court reversed this decision and ordered the cancellation of Ms Taylor’s mark. Ms. Taylor subsequently appealed to the High Court.

Issues

1. Whether the "Katy Perry" mark had, before the Priority Date, acquired a reputation in Australia, and whether that reputation extended to clothing?

2. Whether, because of that reputation, the use of the "Katie Perry" mark by Ms. Taylor on clothing would be likely to deceive or cause confusion?

Laws Involved

1. S. 60 of the Trade Marks Act, 1995 (Australia).

2. S. 88 of the Trade Marks Act, 1995 (Australia).

   
   

Analysis

The majority allowed the appeal. The court observed that although the “Katy Perry” mark had acquired a reputation in Australia before the priority date, such a reputation was limited to entertainment and recorded music only and did not extend to clothing. The court noted that prior to 29^th September 2008, the “Katy Perry” branded merchandise was restricted to concert venues only, both in Australia and the United States. The majority rejected the lower court analogy of using the “common practice of pop stars selling merchandise” to extend the disputed trademark’s reputation to clothing, observing that a general industry practice cannot substitute for actual use of the mark in relation to the relevant goods (in this case, clothing).

The court also rejected the “likelihood of confusion” argument. It was observed that an ordinary, reasonable Australian consumer, even if aware of the pop star, would have expected her branded clothing to bear a visible connection to the singer (such as through images, tour names, or song references). A normal and fair use of the mark “Katie Perry”, that had no association with the artist, would not have created a real and tangible danger of confusion. While the majority acknowledged that the singer had acquired significant fame by 2019 and her stage name “Katy Perry” had mass recognition, there was still no substantial evidence to show likelihood of confusion. The two marks co-existed in the market for over ten years, and there was no instance of reported confusion, resulting in the inference that consumer deception was highly unlikely.

Finally, the court also noted that the singer was essentially an “assiduous infringer”. The “Katie Perry” mark had already been registered by Ms. Taylor in 2008, prior to the singer launching her merchandise store in 2009. Thus, any consumer confusion (even if proved) was caused by the singer herself, who used a name that was already trademarked by another. To cancel the previously registered mark on grounds of confusion created by the infringer herself would be to thereby reward wrongdoing, a result contrary to the legislative intent.

Conclusion

The court thus finally sided with Ms. Taylor, as her trademark had been registered in Australia prior to the singer ever entering the market. This verdict serves as a powerful reminder that the trademark law operates as a ruthless equalizer where your fame, influence, and commercial success, however extensive and cross jurisdictional,  confer no immunity automatically.