Case update: Taylor v Killer Queen LLC [2026] HCA 5 (11 March 2026)
This week the Australian High Court in Taylor v Killer Queen LLC [2026] HCA 5 issued a landmark decision for small business owners and trade mark law in Australia. This ruling, and its prior series of decisions and appeals, has been closely followed by both the media and trade mark lawyers alike for nearly a decade. Beyond its colourful facts, the case highlights the importance of priority dates and scope of registrations, and clarifies the Australian position on cancellation of registered trade marks due to the fame and notoriety of another trade mark or brand.
Background
Katie Taylor (née Perry), an Australian designer, launched a fashion brand under her name in 2007 and in September 2008 filed an Australian trade mark application for “Katie Perry” for clothing in Class 25 (Designer Registration). Katy Perry (real name Katheryn Hudson), who first performed under her stage name in 2002, filed an Australian trade mark application in June 2009 for “Katy Perry” for prerecorded CDs and entertainment services in Classes 9 and 41 (Musician Registration).
The dispute began in 2009 when Ms Perry’s team opposed the Designer Registration (subsequently withdrawn), and sent Ms Taylor a cease and desist letter. Negotiations failed to resolve the matter. In 2019, Ms Taylor brought a trade mark infringement claim in the Federal Court of Australia, on the basis that Ms Hudson’s companies had sold clothing in Australia during her tours under the similar mark (Katy Perry). Killer Queen LLC (Ms Hudson’s company) cross-claimed seeking rectification by cancellation of the Designer Registration under s 88(2)(a) and s 88(2)(c) of the Trade Marks Act 1995 (Cth) (Act). Under these sections, a registration can be rectified by cancellation on the grounds on which the registration could have been opposed, notably s 60. This section allows opposition of a trade mark if there is a likelihood of deception or confusion because of the reputation of the well-known mark in Australia as at the priority date.
At first instance, Ms Taylor succeeded. The Federal Court found trade mark infringement by selling the clothing merchandise, and dismissed the cross-claim for cancellation of the Designer Registration. However, in 2024 on appeal to the Full Court of the Federal Court of Australia, the Full Court reversed these findings and ordered cancellation of the Designer Registration.
Ms Taylor appealed to the High Court, which heard the matter in September 2025. The appeal raised three issues concerning rectification by cancellation of the Designer Registration under the Act:
- Issue 1 – s 88(2)(a) – if the Designer Registration should be cancelled because of the reputation of the Musician Registration in Australia before the priority date of the Designer Registration, and the use of the Designer Registration would be likely to deceive or cause confusion. This is to be addressed as to the circumstance as at the filing date of the Designer Registration.
- Issue 2 – s 88(2)(c) – if the Designer Registration should be cancelled because of the circumstances applying at the time when Killer Queen filed its cross-claim for cancellation, the use of the Designer Registration was likely to deceive or cause confusion; and
- Issue 3 – s 89 - that if the Designer Registration is cancelled on the basis of Issue 1 or 2, that the Court can use its discretion not to cancel the Designer Registration, if the registered owner (Ms Taylor) satisfies the court that the ground for rectification has not arisen through any act or fault of theirs.
The High Court’s judgment
By a three-to-two majority, the High Court allowed the appeal and set aside the Full Court's cancellation orders. The majority held that the Full Court had erred in several instances, and the trial judge’s decision should not have been overruled, making the following key points:
- A trade mark in Australia can only acquire reputation in respect of particular goods or services. While the Musician Registration had reputation in music and entertainment at the date of Ms Taylor filing the Designer Registration, this cannot be extended to Class 25 (and clothing) due to the “common practice” of artists selling merchandise;
- That you should not conflate the personal fame of Katy Perry, with the reputation of the Musician Registration;
- A party which knowingly and persistently infringes a registered mark should not be permitted to rely on the market confusion flowing from its own behaviour as justification for cancelling that mark; and
- In the event that s 88(2)(a) or 88(2)(c) had been made, a trade mark application to register a mark does not, constitute the “act or fault” that would prevent the section 89 discretion from being used.
The roar is not finished between these two, the case has been sent back to the Full Court to consider the issues of trade mark infringement, including whether Ms Taylor’s 10 year delay in commencing proceedings is an issue.
Implications
This decision reaffirms fundamental trade mark principles. Had Ms Hudson filed her application across all relevant Classes (including clothing) when she first launched her career, she would likely have had prior rights sufficient to prevent the Designer Registration. The decision also confirms that for rectification on this basis, what matters is the reputation of the trade mark in relation to the specific goods or services at issue, not the general fame of the person behind the mark. This should provide comfort to small business owners whose brand later becomes well known by actions of a third party.
What does this mean for your business?
Businesses, particularly start-ups and new businesses, should:
- Prepare a trade mark strategy before launching: Develop an intellectual property strategy prior to launch to secure an early priority date and ensure registrations cover all goods and services provided, including auxiliary goods and services.
- Continue to expand your registration: Businesses should always be reviewing their intellectual property portfolio. Filing supplemental applications to cover additional goods and services as you expand is important as your reputation may only extend to the goods / services registered. Further, if you are expanding into new territories, these applications should be filed promptly.
- Act on infringement promptly: Take steps to address third-party infringement as soon as practicable, to avoid any delay undermining future proceedings.
- Avoid creating brands with a current reputation: Even if you believe you operate in a different market, a third party may be able to prevent use and registration of your trade mark if it can show its reputation extends to your field. It pays, if possible, not to use a brand name that is similar to a well-known brand or individual.
Trowers & Hamlins’ Intellectual Property team specialises in helping businesses, particularly new business and start-ups, to develop and implement trade mark and brand protection strategies. If you would like advice on these issues, please get in touch. We would be happy to assist.
