The High Court of Australia has been busy on the trade mark and consumer protection side of things this month with the Court granting Katie Taylor special leave to appeal in the KATY PERRY/KATIE PERRY trade mark dispute today (11 April) and also granting special leave to hear the BED BATH N TABLE consumer law dispute on 3 April 2025.  Although these cases deal with different causes of action, both appeals will focus on reputation issues, the outcome of which will have a significant impact on the way well-known brands can be protected and enforced in Australia.

KATY PERRY v KATIE PERRY dispute – Appeal of Killer Queen, LLC v Taylor [2024] FCAFC 149

In November 2024, the Full Federal Court of Australia ordered that Ms Taylor’s trade mark registration for KATIE PERRY for clothing be cancelled on the basis that Killer Queen LLC (the company behind Katy Perry, the famous American singer-songwriter) already had a reputation in the KATY PERRY trade mark in Australia for music and entertainment at the time that the KATIE PERRY trade mark application was filed.  The Full Court held that, since it is common for musicians and bands to sell clothing and merchandise in connection with their music and entertainment services, the reputation in “Katy Perry” for music and entertainment should extend to clothing. Such use of the KATY PERRY trade mark for clothing would be likely to cause consumer confusion.  However, the Full Court did not distinguish between the reputation of Ms Hudson performing as “Katy Perry” and the reputation residing in the KATY PERRY trade mark.

This finding (among others) will be reconsidered in the High Court and will be of particular interest to foreign trade mark owners in the entertainment space. If the approach of the Full Court is upheld, celebrities are likely to be afforded much broader rights when opposing Australian trade mark applications on the basis of reputation.

BED BATH N TABLE dispute – Appeal of Global Retail Brands Australia Pty Ltd v Bed Bath 'N' Table Pty Ltd [2024] FCAFC 139

In October 2024, the Full Court considered allegations of trade mark infringement, passing off and misleading and deceptive conduct in the context of similar brands comprised of largely descriptive words – BED BATH N’ TABLE and Table . The Full Court confirmed that there was no trade mark infringement.  However, in deciding that the claims of passing off and misleading and deceptive conduct did not succeed (and overturning the first instance decision), the Full Court found that:

• Bed Bath ‘N’ Table’s (BBNT) strong reputation in the BED BATH N’ TABLE brand and the fact that BBNT was the only retailer in Australia to use the words “bed” and “bath” in its name for 40 years were of no importance to the consideration of whether consumer confusion was likely; and

• the “wilful blindness” of the marketing employees responsible for developing the brand to BBNT’s reputation in the BED BATH N’ TABLE brand was not equivalent to an intention to mislead or deceive, which is a relevant factor for a misleading and deceptive conduct claim.

BBNT is appealing both of these findings to the High Court, arguing that wilful blindness should be treated the same as a positive intention to mislead or deceive.  The High Court has not considered the issue of wilful blindness for 90 years, during which time marketing activities and consumer approaches to purchasing goods and services have both changed significantly.

The High Court’s decisions on these issues will be of interest to any brand owner experiencing “competitor flattery” in Australia.

Future developments

Both of these matters will now proceed to full hearings before the High Court of Australia.  Dates for those hearings have not yet been scheduled.