The High Court refused an application by US singer Katy Perry to cancel the clothing trade mark Katie Perry held by an Australian fashion designer1. It was argued that its use by the designer ‘would be likely to deceive or cause confusion’2. This was due to the reputation the singer’s later trade mark Katy Perry had acquired. Steward J invoked a maxim against allowing a person to take advantage of their own wrong3. Should the ‘assiduous efforts of an infringer’ in creating likely confusion be permitted to cause cancellation?4 A literal reading suggested ‘maybe’, but Steward J held ‘no’. The statute should not reward an infringer as parliament ‘cannot have intended such a glaringly wrong outcome’. Where the legislative target is clear, the duty of the court is to ensure it is hit rather than missed5. This case shows how old maxims are accommodated into modern practice.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
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Footnotes:
1 Taylor v Killer Queen LLC [2026] HCA 5.
2 s 88(2)(c) Trade Marks Act 1995 (Cth).
3 [135-157], Broom’s Legal Maxims (191), Ruthol [2005] NSWCA 443 [20-21].
4 Bali (1968) 118 CLR 128 (133), Murray Goulburn (1990) 171 CLR 363 (384, 389).
5 [157], Newcastle (1997) 191 CLR 85 (113), Taylor [2014] HCA 9 [60] cited.