Katie Perry 1, Katy Perry 0: The High Court's Landmark Trade Mark Decision in Taylor v Killer Queen LLC

It reads like the plot of a legal thriller: a Sydney fashion designer takes on one of the most famous pop stars on the planet — and wins. In March 2026, the High Court of Australia handed down its landmark decision in Taylor v Killer Queen LLC [2026] HCA (Case No. S49/2025), ruling 3-2 in favour of Australian designer Katie Taylor and her registered "Katie Perry" trade mark for clothing.

The decision is more than a fascinating celebrity clash. It carries profound implications for how trade mark law treats registered owners, how courts assess "reputation," and what happens when a powerful brand deliberately ignores a smaller competitor's registered rights.

The Background: Two Perrys, One Register

Katie Taylor was born Katie Jane Perry. She launched her fashion label under the name "Katie Perry" in 2007 and, on 29 September 2008, registered the word mark "KATIE PERRY" in Class 25 (clothing) with IP Australia. That registration date became her all-important priority date.

Katheryn Hudson — better known to the world as Katy Perry — had been performing under her stage name since 2002. She did not apply to register the mark "KATY PERRY" in Australia until June 2009, obtaining registration only in Classes 9 and 41, covering recorded music and entertainment. Crucially, she never registered the mark for clothing.

A decade of tension culminated in 2019 when Ms Taylor commenced Federal Court proceedings, alleging that Katy Perry's companies had infringed her registered "Katie Perry" clothing mark by selling "Katy Perry"-branded apparel in Australia. The pop star's companies — including Killer Queen LLC — fired back with a cross-claim seeking to have the designer's trade mark cancelled and removed from the Register.

The Procedural Rollercoaster

The trial judge, Justice Markovic, ruled largely in Ms Taylor's favour, rejecting the cancellation cross-claim and finding infringement. On appeal, however, the Full Federal Court overturned those findings entirely and ordered the cancellation of Ms Taylor's "Katie Perry" mark — a result that, if it had stood, would have stripped the designer of a registration she had held for over a decade.

Ms Taylor appealed to the High Court. The five-judge bench — comprising Gordon ACJ, Steward, Gleeson, Jagot, and Beech-Jones JJ — allowed her appeal by a 3-2 majority.

The Three Legal Battlegrounds

The High Court examined three distinct issues under the Trade Marks Act 1995 (Cth).

1. Was the Singer's Mark Already Too Famous Before the Designer's Priority Date? (ss 60 and 88(2)(a))

The first question was whether, before Ms Taylor's priority date of 29 September 2008, the "Katy Perry" mark had already acquired such a reputation in Australia that registration of "Katie Perry" for clothing would have been likely to deceive or cause confusion.

The majority said no. Critically, Jagot J (with whom Steward and Gleeson JJ substantially agreed) held that reputation under section 60 must be assessed by reference to the particular goods or services for which the competing mark has been used — not the personal celebrity of the individual behind it. The fame of Katy Perry the person in 2008 in respect of music and entertainment could not simply be assumed to extend to clothing merely because there is a general practice of pop stars selling branded merchandise.

The Full Court had conflated the broad personal fame of Ms Hudson with the legal concept of trade mark reputation. The High Court rejected that approach as error.

2. Did Post-Registration Circumstances Justify Cancellation? (s 88(2)(c))

Even if the mark had been validly registered in 2008, could it be cancelled as at December 2019 — when the cross-claim was filed — on the basis that Katy Perry's star had risen so dramatically in the intervening decade that use of the "Katie Perry" mark had become likely to cause consumer confusion?

Again the majority said no, and pointed to a factor that proved decisive: there was a complete absence of any evidence of actual consumer confusion over more than ten years during which both marks had been in use. The trial judge's finding that there was no real and tangible danger of confusion was not unreasonable or untenable. The Full Court had no proper basis to interfere with it.

3. Should the Court's Discretion to Refuse Cancellation Apply? (s 89)

Section 89 of the Trade Marks Act gives a court a discretion to decline to cancel a registered mark if the grounds for removal did not arise through any "act or fault" of the registered owner. This was the most nuanced — and arguably most important — part of the judgment.

The majority held that the mere act of applying to register a trade mark cannot, by itself, constitute the "act or fault" that extinguishes the section 89 discretion. Ms Taylor had applied to register her own name, in good faith, before Katy Perry's Australian registration even existed.

Justice Steward added a pointed separate judgment that introduced a concept destined to feature prominently in future trade mark disputes: the "assiduous infringer."

The "Assiduous Infringer" — A New Warning to Big Brands

Steward J observed that Katy Perry's companies had sold "Katy Perry"-branded clothing in Australia for years in full knowledge of Ms Taylor's registered mark. They had not sought to obtain a licence, challenge the registration promptly, or avoid the conflict. Instead, they had continued to trade, and then sought to use the resulting consumer confusion — confusion their own conduct had substantially created — as the very basis to cancel the designer's mark.

His Honour made clear that the law should not permit a party to profit from its own deliberate wrongdoing in this manner. A well-resourced entity that knowingly and persistently infringes a smaller registered mark owner's rights should not be rewarded by having that registration cancelled as a consequence of its own infringement.

The minority — Gordon ACJ and Beech-Jones J — would have dismissed the appeal. In their view, a consumer encountering the "Katie Perry" mark on clothing would be likely to wonder whether it was connected to the pop star, given the close similarity of the marks and the well-known practice of popular music stars selling branded merchandise. They also considered that Ms Taylor's own act of registration, knowing of Ms Hudson's growing fame, was sufficient "act or fault" to prevent the section 89 discretion from being exercised in her favour.

Where Things Stand Now

The matter has been remitted to the Full Federal Court for determination of remaining grounds of appeal and costs. The infringement cross-claims — including Katy Perry's companies' liability for selling clothing under the "Katy Perry" name in Australia — are yet to be finally resolved.

Strategic Lessons for Brand Owners

Whatever the entertainment value of the celebrity angle, this case delivers hard-nosed lessons for anyone building a brand in Australia.

• Register early — and for the right classes. Ms Taylor's registration in Class 25 before Katy Perry's Australian filing was the cornerstone of her entire case. A priority date is not just a formality; it is a legal shield. If Katy Perry's companies had registered for clothing in 2008 or earlier, this case would never have proceeded.

• Reputation must be proved for the right goods. The High Court confirmed that celebrity or fame in one field does not automatically translate into trade mark reputation in another. If you are seeking to cancel or oppose a mark on reputation grounds, you must marshal evidence specifically targeted at the goods or services in dispute — not just general name recognition.

• Absence of evidence of confusion is powerful. Over ten years of co-existence with no documented consumer confusion was fatal to the cancellation case. If you are a registered owner facing a challenge, document your market position and the absence of confusion assiduously from the start.

• Do not infringe your way to a cancellation. The "assiduous infringer" doctrine is now firmly part of Australian trade mark jurisprudence. Deliberately selling infringing goods and then leveraging the resulting confusion to attack the legitimate registrant's mark is a strategy the High Court has emphatically disapproved.

• Personal name marks deserve protection. Australian designers, artists, and small business owners who register their own name as a trade mark can take real comfort from this decision. Subsequent fame of a celebrity with a similar name will not automatically extinguish a prior, honestly-obtained registration.

Conclusion

The High Court's decision in Taylor v Killer Queen LLC is a reminder that in Australian trade mark law, first-in-time — when backed by a valid registration — still matters enormously. It is a victory for the principle that a registered trade mark is a genuine property right, not a placeholder that disappears when a more powerful competitor arrives on the scene.

For any business — large or small — the case underscores the enduring importance of early trade mark registration, class-specific protection, and careful monitoring of how competitors interact with your registered rights.

At Stellar IP Law, we help clients register, protect, and enforce their trade marks across Australia, New Zealand, and internationally. If you have questions about your brand's trade mark position, or need advice following this decision, contact our team today.