Killer Queen ‘killed off’ – Katie Taylor outduels Katy Hudson in epic Katie(y) Perry trade mark battle

Introduction

On 11 March, the High Court of Australia delivered its judgment in Taylor v Killer Queen LLC [2026] HCA 5. The judgment marks essentially the final chapter in the long-running trade mark battle between Katie Jane Taylor, an Australian fashion designer trading under the name “Katie Perry”, and Katheryn Hudson, the internationally renowned pop star known as “Katy Perry”. For a history of the dispute and Full Federal Court decision, see our previous article.

In a 3–2 decision, the High Court found in favour of Ms Taylor, allowing her to keep the registration of her “Katie Perry” trade mark and finding that Ms Hudson’s companies’ use of “Katy Perry” as a trade mark had infringed Ms Taylor’s trade mark.

This article summarises the High Court’s reasoning and practical implications for brand owners and trade mark applicants in Australia.

Background

The saga has its origins back to 2007, when Ms Taylor started using her birth name “Katie Perry” as her fashion label. She then registered the business name and domain name and filed an application for trade mark registration of “Katie Perry” in class 25 for clothing on 29 September 2008. That was accepted by IP Australia and officially recorded in the Australian Trade Marks Register on 21 July 2009 after an opposition filed by Ms Hudson’s lawyers in May 2009 was later withdrawn.

Ms Hudson, performing under the stage name “Katy Perry” since 2002, released her second studio album, “One of the Boys,” in June 2008. Her singles, including “I Kissed a Girl” and “Hot n Cold,” gained significant popularity in Australia, establishing her as a nationally and internationally famous pop star by September 2008. Ms Hudson applied for registration of the “Katy Perry” trade mark in June 2009, covering classes 9, 25 and 41. However, her application for class 25 (clothing) was withdrawn after an adverse examination report noted its similarity to Ms Taylor’s “Katie Perry” mark.

The first shots in the dispute were fired in anger in May 2009 by Ms Hudson when her lawyers filed a notice of opposition to Ms Taylor's trade mark application and sent a cease-and-desist letter. Later that year, Ms Hudson withdrew the opposition proceedings, and Ms Taylor’s trade mark was registered. During that year Ms Hudson proposed a co-existence agreement which was rejected by Ms Taylor.

After that time, Ms Hudson’s fame continued to grow and she embarked on several Australian tours in 2009, 2011, 2014 and 2018 at which “Katy Perry” branded merchandise was sold through her associated companies Killer Queen LLC, Kitty Purry Inc. and Purrfect Ventures.

In September 2019 Ms Taylor issued a letter claiming Ms Hudson and her companies had infringed her trade mark by selling or authorising the sale of “Katy Perry” merchandise.

Court Proceedings Summary

Round 1 - Federal Court Proceedings (Taylor v Killer Queen LLC (No.5) [2023] FCA 364)

• On 24 October 2019, Ms Taylor commenced formal legal proceedings against Ms Hudson and her associated companies for trade mark infringement.

• 20 December 2019: Ms Hudson’s team filed a crossclaim seeking to cancel Ms Taylor's trade mark, arguing it was likely to deceive or cause confusion due to the singer's massive reputation.

• 28 April 2023: Justice Brigitte Markovic ruled largely in Ms Taylor's favour, finding Ms Hudson's companies infringed the “Katie Perry” trade mark and dismissing the crossclaim to cancel the trade mark.

Round 2 - Full Court Appeal (Taylor v Killer Queen LLC [2024] FCAFC 149)

• November 2024: On appeal, the Full Court of the Federal Court overturned the initial ruling. The Full Court found Ms Taylor's “Katie Perry” trade mark should be cancelled because its use would likely cause confusion given Ms Hudson's reputation.

Round 3 – High Court (Taylor v Killer Queen LLC [2026] HCA 5)

• 14 April 2025: The High Court of Australia granted Ms Taylor special leave to appeal the Full Court's decision.

• 11 March 2026: In a 3–2 majority decision, the High Court ruled in favour of Ms Taylor, reinstating her trade mark and finding Ms Hudson's reputation in entertainment did not automatically extend to clothing in a way that would cause confusion with Ms Taylor's pre-existing “Katie Perry” mark.

• March 2026: The matter has been remitted to the Full Court to determine unresolved issues, including the relief to be granted, the amount of any damages, and costs.

Issues in High Court appeal

The High Court appeal was principally concerned with the Full Court’s decision to uphold the crossclaim for cancellation of Ms Taylor’s mark under s 88. In reviewing that decision, the High Court had to consider the application and construction of ss 60, 88(2)(a), 88(2)(c) and 89 of the TM Act (rectification and discretion). We looked in detail at the High Court grounds of appeal in our previous article.

It is important to note that other matters considered in earlier decisions, such as findings on infringement, joint tortfeasorship, and honest concurrent use, were not considered by the High Court. For a review of those issues, see our previous article.

In determining the cancellation issue the key matters considered by the High Court were:

• Whether, at both the priority date (s 60, s 88(2)(a)) and at the time of application for rectification (s 88(2)(c)), use of the “Katie Perry” trade mark would be likely to deceive or cause confusion due to the reputation of the “Katy Perry” mark.

• Whether a trade mark can acquire a reputation in Australia beyond specific goods or services.

• Whether reputation acquired in one class (music/entertainment) could affect registration in another (clothing).

• The treatment of notional normal and fair use versus actual use in assessing likelihood of confusion.

• The impact of persistent infringement and whether an "assiduous infringer" should benefit from rectification.

• Whether the discretion not to rectify under s 89 was enlivened and properly exercised.

The High Court’s Decision

Section 60 and 88(2)(a): Reputation and likelihood of confusion

Reputation of the “Katy Perry” Mark

The s 60 assessment considers reputation and the likelihood of confusion ‘as at the priority date’.

That is the date on which Ms Taylor filed her application for her “Katie Perry” mark, being 29 September 2008.

The High Court affirmed:

• a trade mark’s reputation must be tied to specific goods or services;

• it is the reputation in the trade mark, not that of the individual, which must be considered; and

• the burden of proving likelihood of confusion lies on the party seeking cancellation.

It was agreed by all the judges that before the priority date of 29 September 2008, the “Katy Perry” mark had acquired a reputation in Australia in relation to entertainment and recorded music but not clothing.

The majority rejected the Full Court’s reasoning that the common practice of pop stars selling merchandise extended the reputation of the “Katy Perry” mark to clothing, as no “Katy Perry” branded clothing had been sold in Australia before the priority date.

Likelihood of confusion

The majority emphasised that the likelihood of confusion under s 60(b) must arise ‘because of’ the reputation of the earlier mark, that is Ms Taylor’s “Katie Perry” mark.

The majority held that the Full Federal Court erred in:

• conflating the reputation of Katy Perry as an individual with the reputation of her trade mark and found that the primary judge (Justice Markovic) correctly concluded that the use of the “Katie Perry” mark on clothing would not likely deceive or confuse consumers, as the “Katy Perry” mark had no reputation in clothing before the priority date; and

• displacing the primary judge’s evaluative findings. Put simply: the evidence did not justify overturning the trial judge’s assessment that the respondents had not proved a real, tangible likelihood of confusion at the priority date.

The majority also considered that an ordinary person aware of the “Katy Perry” mark and its reputation in entertainment would expect clothes to have images, song names, or tour information connected with Ms Hudson’s pop star status, not simply clothing with a tag bearing only “Katie Perry”. That disconnect meant there was no real, tangible danger of confusion.

Section 88(2)(c): Circumstances at the time of rectification

Section 88(2)(c) allows rectification of the Register if, at the time of the application for rectification (in this case, the crossclaim filed by Ms Hudson in December 2019), use of the earlier trade mark (the “Katie Perry” mark) is likely to deceive or cause confusion.

In considering this issue, all members of the High Court clarified that the ‘relevant use’ under this section, and also s 60, refers to the notional normal and fair use of the trade mark across its registered scope, not merely its actual use.

Application to facts

By 20 December 2019, Ms Hudson’s fame had grown significantly, and her trade mark was used on a wider range of merchandise, including clothing and shoes.

However, the majority High Court found no evidence of actual confusion over the ten years of coexistence between the “Katie Perry” and “Katy Perry” marks despite the efforts of Ms Hudson’s lawyers to find such evidence. While the absence of evidence of confusion does not preclude a finding of likely confusion, in this case it was persuasive.

In addition, the majority considered the relative strengths of the marks, scale of both marks’ use, trade channels, and visual presentation. The view was that the limited use of the “Katie Perry” mark, compared to the now massive reputation of the “Katy Perry” mark, and its different target markets, meant a consumer acquiring goods bearing the marks would not likely be deceived or confused because they would quickly recognise the difference and realise the marks were unconnected.

In this instance, the massive reputation Ms Hudson had acquired in the “Katy Perry” mark counted against her.

The ‘assiduous infringer’

In addition to the reasons for the s 88(2)(c) grounds for cancellation not being made out, Justice Steward also considered the principle of the ‘assiduous infringer’. This was to deal with an overly literal interpretation of the language of the section, which refers only to whether use of the trade mark is likely to deceive or cause confusion at the time the application for cancellation is filed.

The concept of an ‘assiduous infringer’ refers to a party who persistently and knowingly infringes a registered trade mark, causing confusion or deception which may later be used as a ground for seeking rectification of the Trade Marks Register.

His Honour argued that rectification proceedings should not permit a party engaging in such conduct to succeed in removing a valid mark from the Trade Marks Register.

In this case, his Honour considered that Ms Hudson and her related companies, were ‘assiduous infringers’ because they sold “Katy Perry” branded merchandise for years with full knowledge of Ms Taylor’s registered “Katie Perry” mark.

Justice Steward argued that the Full Court erred in ordering rectification where the confusion alleged was created by Ms Hudson and her companies’ persistent and deliberate infringing conduct, emphasising that such a result rewards wrongdoers.

Section 89: Discretion not to rectify

Section 89 provides discretion not to cancel a trade mark if the registered owner proves that the ground for rectification did not arise through their ‘act or fault’. As the High Court found in favour of Ms Taylor and overturned the cancellation of her “Katie Perry” mark, the Court did not need to consider the s 89 issue.

However, the High Court confirmed:

·       section 89 is the sole source of power not to rectify the Register where a ground in section 88 is otherwise established; and

·       that merely applying for trade mark registration does not constitute an “act or fault.”

It ‘Ain’t Over’ – An epilogue

While the substantive issues concerning cancellation of the “Katie Perry” mark and the resulting infringement by Ms Hudson and her companies’ use of the “Katy Perry” mark have been determined, several other matters are unresolved and have been remitted by the High Court to the Full Court for determination. These cover questions of relief, damages and costs, including:

• Three grounds of appeal by Ms Hudson’s team which were not considered by the Full Court because of its decision to cancel the “Katie Perry” mark, which the High Court overturned. These are whether the primary judge erred in:

  • rejecting the defence of laches. This is an equitable defence preventing a lawsuit when a plaintiff unreasonably delays asserting a claim, causing prejudice or disadvantage to the defendant. It was argued that Ms Taylor's delay in commencing proceedings, some 10 years, disentitled her to obtaining injunctive relief or an account of profits;

  • awarding additional damages against Kitty Purry Inc. for flagrant infringement under section 126(2) of the TM Act; and

  • granting a permanent injunction against Kitty Purry Inc.

• Liability for Ms Hudson, as a joint tortfeasor. The Full Court found Ms Hudson was a joint tortfeasor in some circumstances because of the level of control and input she had on key decisions. However, she avoided liability because the Full Court ordered cancellation of the “Katie Perry” mark. This meant that if “Katie Perry” should never have been registered, there could be no infringement. Now that the “Katie Perry” mark is being reinstated, this personal liability issue is alive.

Conclusion

The High Court’s split decision draws a clear line between celebrity notoriety and trade mark reputation: it is the reputation in the mark, tied to particular goods or services, that matters. By rejecting the Full Court’s assumption that a pop star’s fame and the general practice of selling tour merchandise necessarily extends reputation into clothing, the majority reaffirmed that cancellation under ss 60 and 88 turns on evidence-based, class-linked reputation and a real, tangible likelihood of confusion assessed by reference to notional normal and fair use.

Practically, the judgment is a reminder that brand owners seeking to expand into new categories should secure protection early and marshal category-specific reputation evidence, while rights holders should not assume that personal fame will do that work for them. Even so, the dispute is not entirely at an end: the Full Court must still determine the appropriate relief, damages and costs, and address the remaining grounds that were not dealt with on the earlier appeal. The “Katie Perry” and “Katy Perry” saga may have reached its decisive turning point, but its final commercial consequences will be settled in the next chapter.

Author: Jason Sprague

 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.