Taylor v Killer Queen LLC [2026] HCA 5

Jessica Bell – Kalus Kenny Intelex, Melbourne, Australia

The lengthy trade mark dispute between Australian fashion designer, Katie Perry (now Katie Taylor), and international pop sensation Katheryn Hudson, better known under the stage name Katy Perry (Ms Hudson), has hit a new note: on 11 March 2026, the majority of the High Court of Australia made its determination in Ms Taylor’s favour.

The Dispute

This dispute concerns the word mark KATIE PERRY (the Designer Mark), which Australian fashion designer Ms Taylor applied to register in September 2008 in respect of clothing (Class 25), having commenced selling clothing under her name in 2007.

Ms Hudson had performed under the stage name “Katy Perry” since 2002 and rose to international prominence in around 2008. She initially opposed Ms Taylor’s application and filed her own trade mark application for KATY PERRY (the Singer Mark) in respect of music (Classes 9 and 41) and clothing (Class 25), but that application was refused due to its similarity to Ms Taylor’s mark and the opposition was ultimately withdrawn.

The Designer Mark was subsequently registered in August 2009 and Ms Taylor later commenced proceedings against Ms Hudson and her associated entities alleging that the respondents had infringed the mark by using the Singer Mark in the promotion and sale of clothes. The procedural history, and factual background, of this case are summarised with greater detail in our previous article.

The Issues in Dispute

The High Court was tasked with determining three issues in the matter:

1. Rectification

Under the Trade Marks Act 1995 (Cth) (the Act), a party may apply for rectification of the trade mark register. If successful, such an application may result in a trade mark being cancelled, removed, amended or limited. In this case, the application for rectification of the Designer Mark was based on the following grounds:

(a) that, because of the reputation of the Singer Mark in Australia before the priority date for the registration of the Designer Mark (29 September 2008), any use of the Designer Mark would be likely to deceive or cause confusion; and

(b) that, because of the circumstances applying when Ms Hudson and the associated entities filed their application for rectification (20 December 2019), the use of the Designer Mark was likely to deceive or cause confusion.

The significance between the circumstances as at September 2008 as opposed to December 2019 was that, as at the latter date, it was apparent and undeniable that Ms Hudson had acquired a significantly higher degree of international stardom and celebrity. Namely, by that point, it was not just Katy Perry’s discography that was famous, but also Katy Perry as a persona.

2. Deception or Confusion (2019 Circumstances)

The second issue concerned a further rectification ground under s 88(2)(c) of the Act. Ms Hudson sought cancellation of the Designer Mark on the basis that, because of the

circumstances applying at the time they filed their rectification application (20 December 2019), use of the Designer Mark was likely to deceive or cause confusion. Importantly, this assessment was undertaken by reference to the circumstances as they existed more than ten years after the Designer Mark had been registered.

3. Discretion

The third issue arose only if one or both rectification grounds were made out. In that event, the Court was required to consider whether it should exercise its discretion not to cancel the Designer Mark where the registered owner, Ms Taylor, could demonstrate that the relevant ground for rectification had not arisen through any act or fault of her own. In the present appeal, this discretionary consideration was addressed by reference to the priority date (29 September 2008) in respect of the first ground, and 20 December 2019 in respect of the second.

High Court Decision

The High Court of Australia allowed the appeal of Ms Taylor by majority, with five justices delivering three sets of reasons.

In relation to the first rectification ground, the majority held that the primary judge had not erred in finding that Ms Hudson and the associated entities failed to establish a real likelihood of deception or confusion. While the Singer Mark had acquired a reputation in Australia in connection with music and entertainment before 29 September 2008, the evidence did not demonstrate that the use of the Designer Mark on clothing would be likely to deceive or confuse consumers. In particular, the Court considered that the Full Court of the Federal Court of Australia (the Full Court) had erred by conflating Ms Hudson’s personal fame with the reputation of the Singer Mark, and by assuming that the common practice of musicians selling merchandise meant that the reputation of the mark extended to clothing.

The majority also rejected the second rectification ground, which focused on the circumstances as at 20 December 2019. The Court accepted that the Singer Mark had achieved a significantly greater reputation by that time. However, it agreed with the primary judge that this “heightened reputation” actually reduced the likelihood of confusion, as consumers were more likely to recognise the difference between the marks. The fact that the marks had co-existed in the market for approximately a decade without clear evidence of confusion also supported that conclusion.

In separate reasons, Steward J emphasised that the law should not reward what he described as an “assiduous infringer”. His Honour noted that the respondents had persistently sold “Katy Perry” branded clothing in Australia despite the existence of the Designer Mark, and observed that it would be an “extraordinary result” if confusion arising from such conduct could justify removing the appellant’s mark from the register.

Accordingly, the High Court concluded that the primary judge had made no material error and that the Full Court should not have overturned her decision. The appeal was allowed with costs, but the dispute is not yet fully resolved. The remaining issues have been remitted to the Full Court for determination. Notably, while the High Court ruling clarifies key points of law, ongoing proceedings may still affect the final outcome of the case.

Key Takeaways

In our previous article, we highlighted the importance of protecting a brand from the moment it is first used. Even though the High Court overturned the Full Court’s decision, that advice remains relevant. The safest way to protect a brand is through early trade mark registration. At a minimum, stakeholders should maintain thorough records of their ongoing brand use, which can help demonstrate both early use and the development of reputation over time.