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From Firework to Fizzle: Katy Perry loses Courtroom battle

On 11 March 2026, the High Court of Australia delivered its highly anticipated judgment in Taylor v Killer Queen LLC [2026] HCA 5. The case stems from a long running dispute between Australian fashion designer Katie Jane Taylor (formerly Katie Perry) and American pop star Katy Perry (Katheryn Hudson). The dispute has become one of the most significant Australian trade mark decisions in recent years.

The High Court ruling clarifies how reputation, confusion, and rectification of the Trade Marks Register are to be assessed under the Trade Marks Act 1995 (TMA). The Court ultimately found in favour of Taylor, overturning the decision to cancel her registered trade mark ordered by the Full Federal Court.

Background to the Dispute

Katie Jane Taylor (the designer) started her fashion label KATIE PERRY in 2007, using her own birth name. On 13 September 2007, she applied to register 'Katie Perry' in logo form for “clothing and fashion designing”. This subsequently lapsed as she did not pay the registration fee. On 29 September 2008 (the priority date), she applied to register the word mark 'Katie Perry' in class 25 for clothing. This was registered on 21 July 2009 after no formal opposition by Katy Perry.

Meanwhile, singer Katy Perry (the singer), performing under her stage name since 2002, rose to international fame in 2008 with the release of her second studio album “One of the Boys” and associated singles. However, as at the filing date of the designer’s mark, the singer had not used the KATY PERRY mark on clothing in Australia. On 26 June 2009, the singer filed to register KATY PERRY as a trade mark in Australia in classes 9, 25 and 41. The class 25 goods were dropped from the application during examination, and this mark proceeded to registration for the class 9 and 41 goods and services on 7 November 2011.

Notwithstanding this, KATY PERRY branded clothing were sold in Australia at concerts and through retailers.

In 2019, after sourcing litigation funding, Taylor sued for trade mark infringement. The singer and her associated companies counterclaimed, seeking cancellation of the designer’s mark under s60 and s88 of the Trade Marks Act (TMA), arguing that the singer had acquired a relevant reputation and the designer’s use of her registered mark was likely to cause consumer confusion or deception.

Relevant sections of the Trade Marks Act

Under s88 of the TMA, a Court may rectify the register by cancelling the registration of a trade mark on:

• s88(2)(a): any of the grounds on which the registration of the trade mark could have been opposed, or
• s88(2)(c): because of the circumstances applying at the time when the application for rectification is filed, the use of the trade mark is likely to deceive or confuse.

Under s60 of the TMA, 

• the registration of a trade mark can be opposed on the basis that another trade mark, had, before the priority date of the application for registration, acquired a reputation in Australia, and because of that reputation, the use of the applied for mark would be likely to deceive or cause confusion.

Under s89 of the TMA,

• the Court has discretion not to cancel a registration under s88(2)(a) or 88(2)(c) if satisfied that the ground relied on has not arisen through any act or fault of the registered owner of the trade mark.

Procedural History

Primary Decision

The primary judge found in favour of Taylor, holding that:

• The singer’s merchandise activities infringed Taylor’s trade mark.
• The application to rectify the register by cancelling the designer’s mark was rejected. While the singer had a reputation in entertainment and music, she did not have a reputation in KATY PERRY for clothing as at the 2008 priority date and the singer had not established that the designer’s use of 'Katie Perry' on clothing would deceive or confuse. There was no evidence of actual confusion or deception.

Full Federal Court Appeal

The Full Court reversed the decision, ruling that:

• The singer had an Australian reputation that extended to clothing by 2008. It was common practice of pop starts to sell merchandise including clothing at concerts and to launch their own clothing label.
• Too much weight had been placed on absence of evidence of actual confusion.
• It was irrelevant to consider the designer’s actual use; the question concerned the nominal use of the designer’s mark as registered.
• The discretion set out in s89 to not cancel the designer’s mark was not established. By applying to register the 'Katie Perry' mark despite knowledge of the singer’s reputation, and the common practice of pop stars to sell clothing as merchandise, the designer contributed to the likelihood of confusion and deception.
• The designer’s registration should be cancelled because the reputation of the singer, and the common practice for pop stars to sell clothing, meant there was a likelihood of consumer confusion.

High Court Appeal

The designer successfully obtained special leave, leading to the 2026 High Court decision. The 3:2 majority allowed her appeal, set aside the Full Court orders, and restored her trade mark. The matter will now return to the Full Federal Court to decide if the singer infringed the designer’s registered rights, whether any defences to infringement apply, and what damages the singer may face.

Key Issues Before the High Court

On questions of legal interpretation, the High Court found:

s60 and s88(2)(a)

• A trade mark can only acquire a reputation in Australia within the meaning of s60, in respect of particular goods or services.
• The fact that a trade mark that has acquired reputation in Australia in respect of particular goods or services does not mean that the trade mark has (or can have) acquired a reputation in Australia in respect of other goods or services.
• If a trade mark has acquired a reputation in Australia in respect of particular goods or services, it is possible that the use of another trade mark in respect of other goods or services will be likely to deceive or cause confusion “because of the reputation of the first mentioned mark”. Whether that is so or not is a question of fact in each case.

s88(2)(c)

• s88(2)(c) in referring to “use” means the normal and fair use of the trade mark across the ambit of the registration of the trade mark, and not the actual use made of the mark by the registered owner.
• The sole source of power not to order rectification of the Register, in circumstances where the court has found a relevant circumstance in s88(2) to exist, is the power of s89 of the Act, despite the use of “may” in s88.

s89

Applying this to the facts

When applying this interpretation to the facts, the majority of the High Court found:

s88(2)(a) and s60 of the TMA

• The singer had a reputation in entertainment and recording discs (or music) as at the priority date. But did not have a reputation in clothing as no clothing had been sold in Australia.
• The trial judge’s original finding that there was no real and tangible danger of confusion or deception on the part of the ordinary person was not unreasonable or untenable. While this danger was possible, the onus was on the singer to prove the danger was real or tangible, and it had not done so. In coming to this conclusion, the majority considered that any clothing associated with the singer would highlight some connection beyond the use of “Katie Perry” for example, an image of Katy Perry, details of a tour name and dates, or the name of a song or album. The normal and fair use of the word mark 'Katie Perry' did not extend to cover use of this nature which would be considered improper or illegitimate use trading off the reputation of the KATY PERRY trade mark. Further, there was no evidence of actual confusion or deception during the 10 years the marks had coexisted in the marketplace on clothing supporting the view that the ordinary consumer would not be deceived or confused.

s88(2)(c)

• The majority found that, by 2019, the singer’s reputation in Australia had increased substantially.
• But again, found no error on the trail judge’s original finding that the singer had not discharged the onus to show there was a real and tangible danger of confusion or deception. The increased reputation of the KATY PERRY mark would help to avoid a likelihood of confusion or deception arising as consumers would be aware of the difference in spelling, and the trade channels through which the designer’s goods were sold showed that the 'Katie Perry' mark would be seen rather than spoken or heard increasing the importance of the different spelling.

Steward J also rejected this ground on the basis that it would reward the “assiduous infringer”. He did not consider that a person who knowingly infringes a registered mark should then be able to rely on that use to have the registered mark cancelled.

s89

Minority view

• The minority agreed that the singer’s reputation as at the priority date did not extend to clothing. But considered there was a likelihood of confusion or deception arising from the use of the 'Katie Perry' mark on clothing as a result of Katy Perry’s reputation in entertainment and music, and the common practice of pop stars selling clothing as merchandise.
• They also considered that the singer’s reputation had significantly increased by 2019 and this increased the likelihood of confusion or deception as at this date.
• They considered the discretion in s89 was not made out as the designer applied to register the 'Katie Perry' trade mark with knowledge of the singer’s reputation and the common practice of pop stars to sell merchandise as clothing.

Impact of the decision

This decision carries several important implications:

1. Reputation must relate to the trade mark and specific goods/services

The decision reinforces that, for the purposes of s60 of the TMA, the relevant reputation is that of the trade mark in connection with specific goods or services, not some broader category of reputation such as the celebrity status of the owner.

2. Discouraging the “assiduous infringer”

The decision emphasises that trade mark law should not benefit individuals or companies that deliberately and repeatedly infringe a registered mark by allowing them to rely on that infringing use to justify cancelling the registered mark.

3. Implications for celebrity merchandising

The decision suggests that the widespread practice of celebrities selling branded merchandise does not, on its own, extend the reputation of the celebrity’s trade marks across all product categories. Additional evidence of why use on merchandised goods would cause confusion or deception is required.

4. Evidence of actual confusion will hold a lot of weight

Evidence of actual confusion or deception will do a lot of heavy lifting. No evidence of actual confusion or deception can be telling. Here, the fact that the marks had coexisted for 10 years without evidence of any confusion was sufficient to support the inference that the ordinary consumer had not been, and would not be, deceived or confused. Whether this lack of evidence of actual confusion or deception will also support a defence to trade mark infringement of honest concurrent use is not clear. Recent Australian decisions on 'honesty' suggest this coexistence may not be sufficient.