Who is the real Swim Shady?

For eighteen months, a small Sydney beach brand and one of the best-selling recording artists of all time have been locked in a trade mark fight that spans four countries. On one side, husband-and-wife team Jeremy Scott and Elizabeth Afrakoff, selling beach umbrellas and sun protection under the name Swim Shady. On the other, Marshall Mathers III, better known as Eminem, defending the ‘Shady’ name he has built a career and reported $250 million fortune around. Last month, the Australian Registrar of Trade Marks handed down its first substantive decision in the case, and it did not go the rapper's way.

Swim Shady lodged its trade mark application with IP Australia in March 2024, initially under the working name "Slim Shade" before settling on ‘Swim Shady’. The application was accepted and published for opposition purposes. In October 2024, Eminem's legal team formally objected, arguing that a business trading on a name so close to ‘Slim Shady’ risked misleading consumers into thinking it was linked to the rapper's merchandise empire.

Eminem's opposition rested on a few grounds. The first was under the Australian Consumer Law; that the similarity between the names could deceive the public. The second was an allegation of bad faith, pointing to the brand's earlier working name as evidence the founders were deliberately trading off the Slim Shady persona. Swim Shady's response was straightforward; a beach and lifestyle brand in Australia is a world away from a US rapper's alter ego, and the two are unlikely to be confused in the minds of ordinary shoppers.

Why Eminem's existing registrations were vulnerable

The timing of the parties' applications may prove important in the broader dispute, but the July decision itself turned on a different question: whether Eminem had used his existing SHADY and SHADY LIMITED registrations in Australia for the relevant goods during the statutory non-use period.

At the time of Swim Shady's application, Eminem did not have an Australian registration specifically for SLIM SHADY, although that did not necessarily prevent him from relying on other trade mark or reputation-based grounds in opposing the application. Under Australian trade mark law, a registration can become vulnerable to removal if it has not been used in good faith in Australia for the relevant statutory period. Eminem only moved to register ‘Slim Shady’ locally in January 2025, well after Swim Shady's application was already in the system.

That gap proved decisive. In its decision handed down on 1 July 2026, the Registrar found that Eminem's ‘Shady’ and ‘Shady Limited’ trade marks hadn't actually been used on clothing, footwear, headwear, bags or leather goods in Australia during the relevant period, despite evidence including tour merchandise, website sales figures and social media posts. Most of the ‘Shady’ branding, the delegate found, was tied to Eminem's music career rather than functioning as a standalone product mark, and what little merchandise had sold in Australia appeared to be handled by his record label rather than the rapper personally, with no clear evidence he exercised control over that use himself.

The upshot of all of this is that, from 1 August, Eminem's ‘Shady’ marks lose coverage for clothing, footwear, headgear, bags and leather goods, though he retains protection for music and electronics.

A bigger fight, one battle at a time

Australia is only one front of the ongoing battle for brand rights, which spans the US, Japan and the UK. Since the Australian decision in July, Eminem's representatives have appealed, meaning the dispute over the SHADY registrations remains ongoing.

The practical lesson

Beyond the celebrity headlines, this case is a useful reminder for any brand owner about the value of using a trade mark, not just holding one. Registering a mark and letting it sit idle, or letting use of the mark drift to another entity, without documented control by the owner, leaves it exposed. It's also a reminder that being first to file, even against a household name, carries real weight under Australian law.

If you're building a brand and want to understand where you stand, whether you're the challenger or the one being challenged, it's worth getting advice before a dispute like this lands on your desk rather than after.