Taylor v Killer Queen, LLC (No 5) [2023] FCA 364

Taylor v Killer Queen, LLC (No 5) [2023] FCA 364

Kitty Purry, Inc infringed the applicant’s mark as a joint tortfeasor in relation to certain Bravado sales of clothes and via concert merchandise and agreed pop-up store sales, and on the Bravado webstore; Ms Hudson directly infringed by personally promoting infringing goods, but succeeded in the ‘own name, good faith’ defence to these claims; other respondents were not directly or jointly liable and most claims for infringement failed. The applicants failed to establish the respondents’ cross-claim for rectification under any of ss 60, 42, 43 or 88(2)(c) Trade Marks Act. No goods outside “clothes” (such as footwear, headgear, bags, jewellery) were found to be clothes or of the same...

Parties
Applicant / Cross Respondent: Katie Jane Taylor; First Respondent / First Cross Claimant: Killer Queen, LLC; Second Respondent / Second Cross Claimant: Katheryn Elizabeth Hudson; Third Respondent: Kitty Purry, Inc; Fourth Respondent: Purrfect Ventures LLC
Jurisdiction
Australia
Judgment Date
21 April 2023
Procedural Posture
Trade Mark Infringement and Rectification / Final Judgment on Liability and Cross Claim
Outcome
Applicant partially successful: declaration that Kitty Purry, Inc infringed the applicant’s mark as a joint tortfeasor with Bravado in respect of certain sales of clothes via concerts, pop-up stores, and the Bravado web store; Ms Hudson directly infringed by promoting the infringing goods but had a good faith own...
Legal Topics
Trade Marks, Infringement, Joint Tortfeasance, Trade Mark Rectification, Likelihood of Confusion, Good Faith Own Name Defence, Honest Concurrent Use, Additional Damages
Intellectual Property Trade Marks Infringement Joint Tortfeasance Trade Mark Rectification Likelihood of Confusion Good Faith Own Name Defence Honest Concurrent Use +1 more

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Parties

Katie Jane Taylor

Applicant / Cross Respondent

Killer Queen, LLC

First Respondent / First Cross Claimant

Katheryn Elizabeth Hudson

Second Respondent / Second Cross Claimant

Kitty Purry, Inc

Third Respondent

Purrfect Ventures LLC

Fourth Respondent

Procedural Posture

Trade Mark Infringement and Rectification / Final Judgment on Liability and Cross Claim

Legal Issues

  1. 1 Did the respondents infringe the applicant's registered trade mark under s 120 Trade Marks Act 1995 (Cth)?
  2. 2 Are the corporate respondents or Ms Hudson liable as joint tortfeasors?
  3. 3 Are any statutory or common law defences available (s 122 Trade Marks Act)?

Ratio Decidendi

Kitty Purry, Inc infringed the applicant’s mark as a joint tortfeasor in relation to certain Bravado sales of clothes and via concert merchandise and agreed pop-up store sales, and on the Bravado webstore; Ms Hudson directly infringed by personally promoting infringing goods, but succeeded in the ‘own name, good faith’ defence to these claims; other respondents were not directly or jointly liable and most claims for infringement failed. The applicants failed to establish the respondents’ cross-claim for rectification under any of ss 60, 42, 43 or 88(2)(c) Trade Marks Act. No goods outside “clothes” (such as footwear, headgear, bags, jewellery) were found to be clothes or of the same...

Court Disposition

Applicant partially successful: declaration that Kitty Purry, Inc infringed the applicant’s mark as a joint tortfeasor with Bravado in respect of certain sales of clothes via concerts, pop-up stores, and the Bravado web store; Ms Hudson directly infringed by promoting the infringing goods but had a good faith own...

Orders

  • Declarations of infringement by Kitty Purry, Inc as joint tortfeasor as specified.
  • Injunction against Kitty Purry, Inc restraining ongoing infringement.