Killer Queen, LLC v Taylor [2024] FCAFC 149

FEDERAL COURT OF AUSTRALIA Killer Queen, LLC v Taylor [2024] FCAFC 149 Appeal from: Taylor v Killer Queen, LLC (No 5) [2023] FCA 364

File number:

Judgment of: YATES, BURLEY AND ROFE JJ

Date of judgment: 22 November 2024

TRADE MARKS – infringement of registered trade mark established – where registered trade mark is a name – joint tortfeasance – principles discussed TRADE MARKS – specification of registered goods – meaning of "clothes" – role of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks as an aid to construction Catchwords: TRADE MARKS – defence to infringement – where infringing mark is a name mark – own name defence – whether joint tortfeasor who does not use the infringing mark can rely on the defence – whether defence applies to the use of an adopted name – where person relying on defence has assigned the name mark – whether assignor can rely on continuing use of own name as a defence TRADE MARKS – defence to infringement – where infringing mark is deceptively similar to the registered mark – whether person using the infringing mark would obtain registration – honest concurrent use – whether concurrent use established – whether honest use established TRADE MARKS – cancellation – whether, because of reputation in prior mark, use of the registered mark would be likely to deceive or cause confusion – where ground of cancellation established – whether discretion should be exercised not to cancel the registration of the registered mark TRADE MARKS – cancellation – whether, because of circumstances applying at the time when the application for rectification is filed, the use of the registered mark is likely to deceive or cause confusion – where ground of cancellation is established – whether discretion should be exercised not to cancel the registration of the registered mark