What is Eminem’s argument?
Eminem objected to the trademark on several grounds. One argument is grounded in consumer law – that trading on the name Swim Shady could mislead or deceive customers into thinking they’re buying a product associated with the rapper.
In response, Swim Shady contends the two parties are in significantly different industries, and that a beach and lifestyle wear company in Australia is unlikely to be confused with the alter ego of a US rapper which was introduced in an EP in 1997.
Eminem continues to sell official Slim Shady merchandise – one of several income streams that has built his net worth to a reported $US250 million.
A Swim Shady beach umbrellaCredit: Swim Shady
Eminem is also claiming the trademark should be refused because it was applied for in “bad faith”, pointing to the fact the business initially chose the name “Slim Shade” before “Swim Shady”.
Jane Rawlings, barrister and acting director of Intellectual Property Program at the University of Technology Sydney’s law faculty, said Eminem intervened promptly to protect his ability to use the trademark in the future.
“He is saying, ‘I’m the real slim shady’ and that the people behind Swim Shady are just imitating and could mislead the general public,” Rawlings said.
Crucially, Eminem did not have a trademark on the name “Slim Shady” in Australia at the time the Sydney business lodged its application for “Swim Shady”.
This works against Eminem, said Olugbenga Olatunji, intellectual property and trademarks lecturer at the University of Sydney.
Jeremy Scott and Elizabeth Afrakoff are the husband and wife behind Swim Shady. Credit: Swim Shady
“The way intellectual property works is it’s the first in line that has the right, so Swim Shady would seem to have the stronger case on that point, because they filed their application first,” Olatunji said.
Instead, Eminem held trademarks for “Shady” and “Shady Limited”, but they have been the subject of non-use applications. In Australia, if there hasn’t been genuine use of a trademark for three years and one month, there are grounds for removal.
Eminem subsequently applied to trademark “Slim Shady” in Australia in January 2025. He also launched objections to Swim Shady’s US and UK trademarks.
Despite the dispute, the company was launched publicly and began selling products in December 2024.
Ultimately, because of the Madrid System for coordinating trademarks internationally, the Australian case could dictate the matter globally.
Eminem performing at the Oscars in 2020.Credit: AP
“The reason why Eminem is concentrating in Australia is because it’s the root in which all other applications are made,” Rawlings said. “If he can knock over Swim Shady’s trademark here, all other applications overseas lose their priority.”
What’s Katy Perry got to do with it?
A key part of Eminem’s argument is that while he may not hold a local trademark to “Slim Shady”, he does in the US, and that the US trademark has led to him acquiring a reputation in Australia. This is ground for opposing a trademark in Australia.
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It is also the argument at the centre of another high-profile case.
Since 2009, US singer Katy Perry has been fighting Australian clothing designer Katie Perry. The latter registered a trademark to sell clothing under the name Katie Perry in 2008, something which did not prevent the US artist from selling branded clothing when she toured Australia the next year.
However, in 2019, Katie Perry launched legal action against the singer Katy Perry, whose birth name was Katheryn Elizabeth Hudson, in Australia’s Federal Court. The fashion designer alleged her trademark had been infringed when the singer had sold branded merchandise in Australia.
The designer won the case but lost a subsequent appeal. The High Court will consider the reputation argument in what could force closure of the Australian Perry’s clothing label. The verdict is also likely to set a precedent that will influence Eminem’s case against Swim Shady, said Olatunji.
Katy Perry in Australia in 2024.Credit: Eddie Jim
“All of us are waiting on the High Court with bated breath as to whether general reputation is enough for famous artists,” Olatunji said. “If it upholds [in favour of Katy Perry] then it’s likely Eminem will prevail here too.”
Where to from here?
Hearings are yet to be scheduled in either Australia or the US, but both sides are refusing to budge.
“It’s very much ‘game on’ on both sides of this,” Rawlings said.
In a statement, Swim Shady stood by its mission “born out of a desire to produce stylish and effective sun shades and other items to protect from the harsh Australian sun”.
“Swim Shady takes its brand protection seriously and will defend its position,” its owners said on Thursday.
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