By: Gregory Pieris, Talia Le Couteur Scott, and Joshua Debinski

The High Court of Australia has handed down its highly anticipated decision in Taylor v Killer Queen LLC [2026] HCA 5 in a narrow 3-2 majority, ending a decade-long trade mark battle between American pop star Katy Perry (born Katheryn Hudson) and Australian fashion designer Katie Taylor (born Katie Perry).

The High Court’s ruling, other than dominating headlines due to the David and Goliath nature of the dispute, clarifies the operation of reputation, confusion and trade mark cancellation under the Trade Marks Act 1995 (Cth) (Act).

Background

As we reported on the trial decision here, Markovic J found at trial in Taylor v Killer Queen, LLC (No 5) [2023] FCA 364 that Hudson and her associated companies (Katy Perry Parties) infringed Taylor’s registered trade mark for KATIE PERRY in class 25 (Taylor Mark) by selling clothing merchandise in Australia branded with her Katy Perry stage name.

On appeal in Killer Queen LLC v Taylor (2024) 306 FCR 199 (as reported here), the Full Federal Court ordered that the Taylor Mark should be cancelled on the basis that ongoing use of the Taylor Mark would likely result in consumer deception or confusion, and as such, Hudson and her associated companies could not be infringing the Taylor Mark. Relevantly, the Full Federal Court held that Hudson’s reputation in her stage name was reputation in her name as a trade mark, and this extended to clothing based on the common practice of pop stars selling branded merchandise and launching their own clothing lines. The Full Federal Court also declined to exercise its discretion to maintain registration given Taylor was aware of Hudson’s significant international reputation at the time of filing the Taylor Mark.

The majority of the High Court (Steward, Gleeson and Jagot J, in separate judgements) has now overturned the Full Federal Court’s decision and reinstated Markovic J’s decision, ordering registration of the Taylor Mark to be maintained. Critically, the majority found that despite Hudson’s celebrity status and international fame, this did not extend to a reputation in Australia specifically for clothing at the time of the Taylor Mark being filed. It follows from the High Court’s reversal of cancellation of the Taylor Mark that the mark had been infringed by the Katy Perry Parties (excluding Hudson herself, who it was established in a previous decision could rely on the “own name” defence) through the sale of KATY PERRY-branded merchandise.

Points of Law on Appeal

The appeal focused on three key questions:

1.   Section 88(2)(a)/Section 60: Whether, because of Hudson’s reputation in her KATY PERRY mark in Australia before the priority date of the Taylor Mark (29 September 2008), use of the Taylor Mark on clothing would have been likely to deceive or confuse consumers, and as such, the Taylor Mark should be cancelled under Section 88(2)(a) of the Act (read alongside Section 60 of the Act).

2.   Section 88(2)(c): Whether, because of Hudson’s reputation in her KATY PERRY mark in Australia as of the date of filing for rectification of the Taylor Mark (20 December 2019), use of the Taylor Mark on clothing would be likely to deceive or confuse consumers having regard to the “circumstances applying at the time,” and as such, the Taylor Mark should be cancelled under Section 88(2)(c) of the Act.

3.   Section 89: If successful in establishing either Section 88(2) ground above, whether the court is entitled to exercise its discretion not to grant an order for rectification under Section 89 of the Act.

Decision

The majority of the High Court determined that the Taylor Mark should not be cancelled, based on the following key findings:

While Hudson had acquired a reputation in Australia before the priority date of the Taylor Mark, this reputation was confined to entertainment services and audio recordings and did not extend to a reputation specifically for clothing. Critically, the Katy Perry Parties had not used the KATY PERRY mark for clothing in Australia before the priority date of the Taylor Mark (29 September 2008). Without this evidence, it could not be assumed that the common practice of pop stars releasing their own branded merchandise was relevant to Hudson’s reputation in Australia.

Ordinary consumers who would be likely to buy clothes bearing the Taylor Mark would also, if they considered the possibility of connection with the KATY PERRY mark, notice the absence of any other features of the use of the Taylor Mark to connect it to pop music concerts and pop music. They would be unlikely to be confused if there was nothing else to signify a connection between the clothing and Katy Perry, the pop star.

Confusion must be proven and not simply assumed. The absence of confusion, if coexistence has occurred for a long enough period, can be decisive. Indeed, the fact that there was not “a skerrick of evidence of any confusion on the part of any member of the public,” despite 10 years of coexistence and despite attempts by the Katy Perry Parties to find this during discovery, means it was not likely that people had been or would be deceived or confused.

The trade channels used by Taylor to sell her “Katie Perry” clothing (websites, social media, markets, showrooms) indicate the Taylor Mark would overwhelmingly be seen rather than heard, reducing the likelihood of aural confusion.

The Full Federal Court had wrongly conflated the reputation of the KATY PERRY mark as a trade mark with the reputation of Katy Perry as an individual in its assessment of reputation in relation to Section 60 of the Act. Such celebrity status cannot automatically result in reputation as a brand across all goods and services.

Because the majority found there were no grounds supporting cancellation of the Taylor Mark under Section 88, there was no need to consider the discretion to maintain registration under Section 89.

In their joint dissenting judgment, Gordon A-CJ and Beech-Jones J agreed with the questions for statutory construction posed by Jagot J but differed in their application to the case and reached a different result. Gordon A-CJ and Beech-Jones J upheld the decision of the Full Federal Court, finding that the Taylor Mark should be cancelled on the basis that, as at the filing date, the reputation of the KATY PERRY mark extended to clothing and use of the Taylor Mark would cause confusion. Their honours found the discretion to maintain registration under Section 89 could not be enlivened because the grounds for cancellation were caused by Taylor’s conduct in applying for registration of the Taylor Mark, her active encouragement of association with the pop star’s name and by failing to take enforcement action for over 10 years.

The decision will now return to the Full Federal Court, where outstanding issues relating to relief will be considered.

Key Takeaways

This case is an important reminder that broad fame, celebrity or status does not necessarily translate to having reputation that will enable opposition or invalidation of third-party trade marks. The dispute underscores the importance of seeking registration of trade marks as early as possible where there is an intention to use the mark for certain goods or services in Australia.

Alternatively, where there is no intention to use the mark for particular goods or services, it may be possible to obtain a defensive trade mark registration (a unique and underutilised feature of the Australian trade mark system) to prevent unauthorised third-party use of the name.