In a recent opposition filed with the USPTO, Kylie Minogue opposed a trade mark application for "KYLIE" filed by Kylie Jenner. Ms Minogue claimed that her earlier rights and use of KYLIE would likely give rise to confusion, mistake or deception and also that any use of KYLIE by Ms Jenner would dilute Ms Minogue's brand by either blurring or tarnishment.

For those who do not frequent the world of "Keeping up with the Kardashians", Kylie Jenner is the younger half-sister of Kim, Kourtney and Khloe and daughter of Caitlin Jenner, previously known as Bruce Jenner. Ms Jenner has a number of US trade mark registrations for KYLIE JENNER and KENDALL & KYLIE (referring to her older sister Kendall). However, it is her application for KYLIE (simpliciter) for "advertising services, namely promoting the brands, goods and services of others; endorsement services, namely, promoting the goods and services of others" that caught Ms Minogue's attention. Ms Minogue is the owner of a number of trade mark registrations and applications in the US for KYLIE and KYLIE MINOGUE.

Under the US concept of trade mark "dilution", by establishing that the mark is a famous mark, the owner of the mark can prevent anyone else using that mark without having to establish any likelihood of confusion. As Ms Minogue does not have any US trade mark registrations for goods and services that are similar or related to those applied for by Ms Jenner, it may be difficult to show that there was a likelihood of confusion that meant Ms Jenner's application should be refused. In the US, it may also be difficult to establish that her mark is sufficiently famous to make out an argument for dilution.

How might this play out in Australia?

Ms Jenner has also filed a trade mark application for KYLIE in Australia and the application is currently under examination.

If Ms Jenner's application is accepted in Australia, it would be expected that it would be opposed. Any opposition battle for KYLIE in Australia would be more heavily weighed in Ms Minogue's favour than in the United States, in light of both existing trade marks, and reputation and use. Having had a music career spanning 30 years, along with her time as Charlene on Neighbours and more recently as a judge on The Voice Australia, there would hardly be a person in Australia that was not aware of "our Kylie".

Therefore, even though a likelihood of confusion relating to reputation would have to be shown in Australia, it would be assumed that Ms Minogue's reputation in KYLIE would be sufficient to successfully oppose Ms Jenner's application. It is also expected that she would be successful on the ground of first use, as Ms Minogue's use of KYLIE dates back at least to her debut album released in 1988 entitled "Kylie" and includes her ownership of the website www.kylie.com since 1996, which predates Ms Jenner's birth.

Ms Minogue also has a broader range of trade mark protection in Australia, including an earlier trade mark for "education and entertainment" services. In contrast, her US application for the same services post-dates Ms Jenner's application by a month, which would appear to be how Ms Jenner's application was able to proceed to acceptance.

Ms Jenner has until 2 April 2016 to respond to Ms Minogue's opposition in the US so we will be waiting to see the counter-shot in this battle of the Kylies.