from the this-again? dept
Some people just don’t know how to take the “L” I suppose. We’ve been following a silly trademark case in Australia between pop singer Katy Perry and fashion designer Katie Perry for some time now. As in previous posts on this topic, I will revert to using first names in attempt to avoid any confusion.
To bring you up to speed, Katy Perry held a music tour in 2014 in Australia and sold a bunch of clothing as merch during the tour. Fast forward to 2023, nine years later, when Katie sued Katy for trademark infringement for selling that merch. Why the nine year gap is anyone’s guess, but initially the courts in Australia found for Katie in the case and declined Katy’s petition to nix the trademark in question. Katy appealed the ruling, leading to some very melodramatic comments from the fashion designer about how the appeal was a “personal attack” upon her. The court disagreed with that on appeal, finding for Katy Perry and reversing the lower court’s ruling, as well as cancelling Katie’s trademark.
The details and timelines are important here, so let’s lay out some facts. First, the suit didn’t lay out any instances of actual customer confusion as a result of the concert merch. Second, Katy Perry had been selling clothing under her trademarked name for her tours a full five years before Katie sold any clothing at all and was famous worldwide at that point. Third, the court found that Katie actually attempted to associate herself with Katy Perry early on, ostensibly to help drive revenue and sales. Fourth, no matter the noises the fashion designer has made over the ruling, nothing within it prevents her fashion brand from operating with its given name.
From a trademark perspective, that’s about as complete a list of reasons for this to not be trademark infringement as I could come up with. But, despite that, apparently Katie Perry wants to elevate this all the way to Australia’s High Court.
She achieved a further legal win in the case on Friday with the High Court allowing her lawsuit against Perry to continue by granting her application for special leave.
This will allow her to try overturn a Full Federal Fourt judgment from November that the US singer, whose real name is Katheryn Hudson, did not infringe the Katie Perry mark by selling clothing during the 2014 Prism tour in Australia.
Given the details mentioned above, it’s difficult to see how the High Court could overturn the prior ruling for Katy Perry. And hopefully the High Court won’t be compelled by the sneaky framing that Katie’s barrister is engaging in here, because the comments below are downright silly.
On Friday, her barrister Christian Dimitriadis SC said the appeal judges had erred in their interpretation of Australian trade mark law. Just because Perry had a reputation as a pop star at the time the Katie Perry trade mark was registered in 2009 did not mean she also had a reputation for selling clothing at the time, he argued.
Ms Taylor had the misfortune of choosing a trade mark similar to someone who became famous and then proceeded to sell clothing in Australia knowing she was infringing that mark, Mr Dimitriadis said.
We’ll get to that last bit in a moment, but what Dimitriadis is arguing here is that Katy Perry failed to prove that she was famous in the realm of clothing sales in Australia and therefore Katie’s trademark for the fashion market should hold strong, no matter her larger fame. It’s a very silly argument, given the fame of Katy Perry, how concert and merch work generally, and, again, the steps Katie took to associate herself with Katy, rather than the other way around. Trying to lock up the name of someone famous worldwide in a foreign country only to use that trademark against the famous person is about as contrary to the purpose of trademark law as it gets.
Which gets into the framing Dimitriadis is attempting to pull off here. It’s subtle, but note that he complains that his client was “misfortunate” to have chosen a trademark similar to Katy Perry who “became” famous. That’s framing is bullshit. Perry’s first worldwide tour, which included performances in Australia, took place in 2009. Katy Perry didn’t “become” famous after Katie Perry started selling clothing. She was already famous and touring in Australia.
I can’t be sure why the High Court even agreed to hear an appeal of the ruling, over the pleas of Katy Perry’s own barrister. But anything other than a quick finding for the pop star would be an injustice.
Filed Under: australia, katie perry, katy perry, trademark
