Taylor v Killer Queen LLC
High Court of Australia · 2026
Taylor v Killer Queen LLC [2026] HCA 5
A fashion designer registered KATIE PERRY for clothes. The pop star Katy Perry was already a household name in Australia. What did her fame count for when she tried to cancel the registration?
What happened?
Katie Taylor (born Katie Perry) is an Australian fashion designer. On 29 September 2008 she applied to register the word mark KATIE PERRY for clothing in class 25 ([1]). Katheryn Hudson, the American performer Katy Perry, had used that stage name since 2002 ([2]). On 26 June 2009 she applied to register KATY PERRY in classes 9, 25 and 41, and in September 2009 amended the application to classes 9 and 41, so the mark was not registered for clothes ([35], [38]). Ms Hudson and Killer Queen LLC applied to cancel the designer's registration ([2]-[3]).
Before 29 September 2008 Ms Hudson's singles and album had charted in Australia ([60]; Jagot J at [251]-[252]). Her tour of Australia was still to come, with tickets on sale from 12 September 2008 for concerts from 10 October ([28]). No Katy Perry branded clothing had been sold in Australia before that date, and her online store went live in October 2008 (Jagot J at [255], [271]; [28]).
The primary judge, Markovic J, refused cancellation. The Full Court of the Federal Court (Yates, Burley and Rofe JJ) ordered cancellation of the registration (Jagot J at [212]-[213]).
What did the Court decide?
By three to two the High Court allowed the appeal with costs, set aside orders 1, 3, 4, 5, 6, 7 and 8 of the Full Court and remitted grounds 5, 6 and 7 of the appeal to the Full Court, with any other outstanding issue and costs ([301]; Order). Jagot, Steward and Gleeson JJ were in the majority, each in separate reasons; Gordon A-CJ and Beech-Jones J, in joint reasons, would have dismissed the appeal ([7], [113]).
Jagot J set out six questions of statutory construction ([214]-[220]). The first three concern s 60; the others concern s 88(2)(c), s 88(1) and s 89, and are not taken further here. She also held that the Full Court should not have set aside the primary judge's evaluation without identifying error ([221]-[223], [281]).
Proposition
What is the principle?
What a reputation under s 60(a) is a reputation in. Section 60(a) asks whether another trade mark had "acquired a reputation in Australia" before the priority date. Jagot J answered that "A trade mark can acquire a reputation in Australia only in respect of particular goods or services" ([215]), because the Act treats a trade mark as a sign used for goods or services ([237]-[238]). Gordon A-CJ and Beech-Jones J agreed on the questions of construction ([6]) and stated the same point in their own reasons ([53]). A reputation in particular goods or services does not mean a reputation in others ([216]). Here the reputation was in "entertainment" and "recording discs" (Jagot J at [263]), or in music and entertainment ([60]). A common practice of pop stars in selling clothing did not turn that into a reputation in clothing: Jagot J at [271] and Gordon A-CJ and Beech-Jones J at [65]. Gleeson J held the practice could not be used to identify the reputation where nothing showed the mark had been used in accordance with it ([182], [195]). Steward J did not give separate reasons on the point ([114]).
The s 60(b) question. Whether, because of the earlier mark's reputation, use of the opposed mark would be likely to deceive or cause confusion is judged at the priority date, on the notional normal and fair use of the opposed mark, and requires a real, tangible danger that a reasonable number of people would wonder whether a trade connection exists ([54]-[56], [66]; Jagot J at [273]; Gleeson J at [183]-[185]). The reputation need not be in the opposed mark's goods; whether use on other goods is likely to confuse is a question of fact in each case (Jagot J at [217]). The reputation is part of this question. Jagot J contrasted the comparison of marks under ss 44 and 120, where reputation is not considered, and said that "Section 60 has a different focus" ([268]); Gleeson J said the s 60 test "is not confined to the issue of resemblance between two marks" ([191]). Use of the earlier mark after the priority date does not show the reputation that existed before it (Gleeson J at [194]; Jagot J at [274]-[278]), and the party seeking cancellation carries the onus (Jagot J at [280]).
Application. Jagot J and Gleeson J held the danger of confusion not shown on the evidence (Jagot J at [283]-[286]; Gleeson J at [197]-[200]), and Steward J agreed that the s 60 ground was not made out ([114]); all three also held the ground in s 88(2)(c) not made out (Jagot J at [296]; Gleeson J at [210]; Steward J at [114]). Gordon A-CJ and Beech-Jones J held it shown ([71]-[72], [76]), mainly because of the commonly accepted practice of pop stars selling merchandise including clothing at concerts ([71]). The joint reasons added that their conclusion did not mean a prominent entertainer is protected across every kind of goods ([77]).
Why does this case matter?
The facts are the sort a student has read about in the press: a global celebrity, a small local designer and a famous name. They invite an answer that starts from fame. The judgment answers a narrower set of questions, in statutory-construction terms, and four sets of reasons give those answers in different words, so the paragraph a student cites has to match the Justice whose words are used.
Exam and application relevance
When a problem has a famous mark opposing or cancelling a registration for different goods, take the s 60 questions in order. First identify what the earlier mark's reputation was in, using the evidence of use before the priority date ([215], [263]). Then ask whether, because of that reputation, notional normal and fair use of the opposed mark on the registered goods would be likely to deceive or cause confusion, and what a notional buyer aware of the reputation would make of it ([54]-[56], [273]).
If the facts include an industry practice, such as celebrities selling clothing, treat it as evidence going to the second question, and then say what else the evidence showed. The Justices drew different conclusions from the same practice ([71]; [200]).
Name the provision you are applying. This case is about ss 60 and 88(2)(a). Self Care is about s 120(1), and Jagot J set the two side by side at [268].
Check your understanding
1. At the priority date, in what was the Katy Perry mark's reputation held, and why did the Court say a common practice of pop stars selling clothing did not change that? 2. Which Justices were in the majority on the result, and what did Gordon A-CJ and Beech-Jones J agree with Jagot J about? 3. What does s 60(b) ask a court to compare, and on whose perspective and at what date? 4. Katy Perry clothing sold in Australia just after the priority date carried the names of her songs. Jagot J said that was not evidence of the use that counted for s 60. Of what did she say it was evidence ([278])? 5. Why might an owner of a well-known mark still lose a s 60 cancellation, even where its reputation in other goods is not in dispute?