Singer Katy Perry’s bid to change defence in trademark case could delay trial, court hears

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The looming legal showdown between singer Katy Perry and an Australian fashion designer could be delayed if the American megastar is allowed to alter her defence, a court has heard.

The pop star is being sued in the Federal Court by Australian designer Katie Taylor, who runs a Sydney-based clothing label under her maiden name, Katie Perry.

Ms Taylor alleges Ms Perry infringed her trademark when she launched a clothing range in Australia that sold in shops such as Myer and Target.

On Tuesday, barrister Matthew Darke SC argued Ms Perry should be permitted to withdraw part of her defence, namely, an admission that licensing the Katy Perry mark amounted to trademark use.

Katie Perry Rohan to Shoot
Camera IconKatie Taylor, who sells clothes under her Katie Perry label, alleges singer Katy Perry breached her trademark. Credit: News Corp Australia, Rohan Kelly

A decision in a different case had altered the law since the defence was filed, he said, and it had simply been missed by the singer’s lawyers.

“We made a mistake, we weren’t aware of the case, and we should have been,” Mr Darke said.

“The question is now, does the case go ahead on the wrong legal footing … or do we fix it up?”

Justice Brigitte Markovic pointed out the trial was meant to start on November 29 and said the proposed change was “about 12 months too late”.

But Mr Darke contended it would cause no real difficulty to Ms Taylor.

This was roundly rejected by her barrister, Richard Cobden SC, who said the admission was “at the heart of the case”.

The designer had, from mid-2020, essentially built her case around the fact Ms Perry and her companies had admitted infringement — and in relation to the whole claim, not just licensing, he told the court.

“We had in our hand an unqualified admission of trademark use directly by the respondents,” he said.

A letter sent from Ms Perry’s lawyers to Ms Taylor’s lawyers in February 2020 underscored that an across-the-board admission was “the only possible explanation”, Mr Cobden said.

Mr Darke said this was wrong and the “narrow” admission had to be read in context.

Justice Markovic said the wording was “ambiguous” in her view as to whether it referred just to licensing or was a general admission of trademark use.

“The question, really, is was that admitted or not,” she said.

Ms Taylor is also suing three companies associated with Ms Perry: Killer Queen, Kitty Purry and Purrfect Ventures.

Mr Cobden said it had been difficult to identify what corporate entities to actually sue, and said Ms Perry and the people surrounding her had been reluctant to offer information.

“A feature of this case … has been that when we seek to explore things that go on within (Ms Perry’s) little empire we are firmly headed off at the pass,” he said.

He said the suggestion Ms Taylor could alter her case in time for the November trial was “not only bold … but it simply cannot be done”.

Mr Darke said Justice Markovic should not accept claims of hardship to Ms Taylor and said any prejudice came from a misunderstanding of what the defence said.

Ms Perry and her companies are also seeking documents from Ms Taylor related to when the designer first became aware Ms Perry was selling clothes in Australia, and over the third-party finance agreement she says allowed her to launch the lawsuit in the first place.

It would be necessary to test Ms Taylor’s evidence on both these matters, Mr Darke said.

Justice Markovic said she would try to deliver a decision by early next week.

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