Runway over reputation: the High Court rejects Katy Perry’s trade mark cancellation attempt

When Sydney-based fashion designer Katie Taylor (née Perry) began designing and selling clothes under the trade mark KATIE PERRY in November 2006, she probably did not envisage a 2026 major High Court victory in a long‑running trade mark dispute against US pop star Katy Perry.

The case is Katie Jane Taylor v Killer Queen LLC & Ors [2026] HCA 5.

Recap

The dispute arose when Ms Taylor’s earlier KATIE PERRY registration blocked a 2009 application by Katy Perry (birth name: Katheryn Elizabeth Hudson) for the trade mark KATY PERRY in Australia. 

Ms Hudson opposed Ms Taylor’s trade mark and the parties’ negotiations for co-existence were unsuccessful. In the intervening period, Ms Hudson sold KATY PERRY branded clothing, shoes and headwear.

In 2019, Ms Taylor sued Ms Hudson and her companies (referred to together in this article as Ms Hudson) for trade mark infringement and Ms Hudson cross-claimed seeking to cancel Ms Taylor’s trade mark. While Ms Taylor was initially successful in her trade mark infringement claim, this was reversed by the Full Federal Court, which also ordered the cancellation of Ms Taylor’s trade mark.

Last year, Ms Taylor sought and was granted special leave to appeal the Full Court decision to the High Court.

Key takeaways

In a judgment delivered this week, the High Court ruled by majority (3:2) in Ms Taylor’s favour, setting aside the Full Court’s decision to cancel the KATIE PERRY trade mark registration. Key points emerging from the judgment are:

1. Acquired reputation attaches to particular goods and services

The Full Court had held that the primary judge wrongly “confined” reputation of Ms Hudson’s mark to entertainment and music. Their Honours considered the common practice of popstars selling merchandise or having their own clothing labels to be relevant. The High Court found here that acquired reputation could not be extended beyond the actual use of a trade mark on or in relation to, particular goods or services. The majority found it to be overwhelmingly likely that “exceedingly few, if any” could have seen any KATY PERRY branded clothing in Australia before the priority date of Ms Taylor’s registration – and the stated common practice of popstars to commercialise other goods could not “give” to the trade mark a reputation in Australia in respect of those other goods.

2. Notional use, not celebrity status – likely to deceive or confuse in a real way

There is a distinction between reputation in a mark for specified goods/services, and the fame or reputation of the owner. It was argued that by the time Ms Hudson filed a rectification application in 2019, Katy Perry’s increased fame meant that Ms Taylor’s trade mark should then be cancelled. However, the High Court held that an ordinary person who was aware of Ms Hudson would “quickly realise” (despite possibly being caused to “momentarily wonder”) that clothing bearing the KATIE PERRY trade mark were unconnected to the popstar Katy Perry. The absence of any features highlighting a connection with Ms Hudson was notable – the clothing did not, for instance, display Ms Hudson’s image or the name/details of a song, album or tour. In other words, the danger of confusion was possible, but was not real or tangible. In making this finding, the High Court considered notional normal and fair use across the scope of Ms Taylor’s registration – the inquiry was not limited to the actual use, but the relevant use could not be illegitimate or improper.

3. Don’t write off lack of confusion evidence

In this case, the two deceptively similar trade marks (KATIE PERRY / KATY PERRY) co-existed in the Australian market for around 10 years with no evidence of actual confusion. Although the Full Court held that the primary judge placed “undue weight” on the absence of evidence of actual confusion, the High Court held that 10 years was “sufficiently long” to support an inference that it was not in fact likely that people had been or would be deceived or confused. The lack of evidence showing actual confusion over this period of time was compelling. In each case, this is a question of fact and degree.

4. Knowing infringement – ignoring the problem won’t go away

Often parties in trade mark dispute negotiations come to an impasse. This decision shows the need to get trade mark strategy right at that point (or earlier) to avoid the risk of infringement. The majority were critical of Ms Hudson proceeding to infringe Ms Taylor’s trade mark with eyes wide open. Justice Steward characterised such conduct as “persistent and assiduous” infringement which, when followed by Ms Hudson’s efforts to seek cancellation of Ms Taylor’s registration, should not lead to an outcome in which the party is allowed to “take advantage of their own wrong”.

What’s next in the Katy Perry v Katie Perry saga?

The case now returns to the Full Federal Court, which will decide whether Ms Hudson in fact infringed Ms Taylor’s KATIE PERRY trade mark, whether any defences to infringement apply, and what damages Ms Hudson might have to pay.

The upshot for brand owners

Don’t assume the reputation acquired (however sizeable) travels beyond the goods and services it is actually used for. Evidence of brand extension is compelling if the trade mark owner uses a trade mark for additional goods and services beyond the core goods and services. However, a Court may not infer a broader reputation based solely on “industry practice” or “commonplace” actions of other parties. Pursuing defensive trade marks – which remain available in Australia – may be considered in some circumstances as part of a broader brand strategy.

If a brand owner uses trade marks that are not registered, it is prudent to first do clearance searches which are broader than searches of the Australian Trade Marks Register, including common law searching. There may already be a business using a trade mark (including on social media channels) that is deceptively similar for the same or similar goods or services. If a brand owner’s trade mark has co-existed with another party’s trade mark over many years, the absence of actual confusion may work against the trade mark owner. Keep records of any and all instances of consumer confusion.