Battle of the Brands: Bed Bath ‘N’ Table Triumphs in Landmark High Court Decision

In Bed Bath ‘N’ Table v Global Retail Brands Australia Pty Ltd HCA 50, the High Court of Australia has set aside a judgment of the Full Federal Court and upheld an appeal by Bed Bath ‘N’ Table Ltd (BBNT) in a dispute concerning a competitor’s use the below mark (House B&B Mark).

In this decision, the High Court upheld the reasoning of the primary judge in finding that Global Retail Brands Australia Pty Ltd’s (GRBA) use of the House B&B Mark was a contravention of section 18 of the Australian Consumer Law (ACL), being misleading or deceptive conduct, even though BBNT’s trade mark infringement claim was unsuccessful.

This decision serves as a timely reminder that a competitor’s use of a similar trade mark may breach the ACL even though it doesn’t comprise trade mark infringement.

Background and primary judgment

GRBA launched its ‘HOUSE BED & BATH’ stores in May 2021 and displayed the House B&B Mark across signage, website, receipts, social media, directories, advertising, gift cards and badges. BBNT, having operated since 1976, at the time held a dominant position in Australian soft homewares, and a distinctive get‑up featuring the ‘BED BATH ’N’ TABLE’ mark and signage. Critically in this case, for decades BBNT was the only Australian trader using the words “bed” and “bath” (in that order) on external store signage.

After GRBA launched these stores using the House B&B Mark, BBNT commenced proceedings for trade mark infringement under section 120 of the Trade Marks Act 1995 (Cth) (TMA) and for a contravention of the ACL under section 18.

The primary judge found that GRBA did not infringe BBNT’s ‘BED BATH ’N’ TABLE’ trade mark under section 120(1) of TMA. The test under this section involves a comparison of marks from the perspective of the ordinary consumer’s imperfect recollection, with reputation playing no role in this assessment. The judge concluded that the marks were not substantially identical or deceptively similar, because:

• the ‘HOUSE’ part of House B&B Mark dominated the overall mark;
• the “’N’ Table” element and composite arrangement part of ‘BED BATH ’N’ TABLE’ was unlikely to be forgotten; and
• the overall presentations of the marks differed.

However, the primary judge held that GRBA contravened section 18 of the ACL by engaging in conduct that was likely to mislead or deceive consumers through its use of the House B&B Mark. The test under this section involves an objective assessment of the conduct in trade or commerce, viewed as a whole, including the immediate and broader context and the consumer state of mind. The relevant context detailed in this case included:

• BBNT’s longstanding reputation in the soft homeware industry;
• The co-location of the HOUSE BED & BATH stores with other soft homeware stores such as Bed Bath ‘N’ Table; and
• The store styling and the unique external use of the ‘bed & bath’ text by BBNT.

Within this context, the primary judge found that GRBA’s adoption of House B&B Mark and the similar “Hamptons” get-up was likely to mislead or deceive ordinary consumers about the two stores’ commercial association or source beyond ‘transitory’ confusion’.

The primary judge also found that GRBA adopted the mark with ‘wilful blindness’ to the risk of confusion. This was supported by the evidence of internal communications with GRBA executives (with references to BBNT) and fast-tracked legal checks.

The High Court decision, Full Court decision and how these differed

The High Court set aside parts of the Full Court’s orders, reinstating the primary judge’s orders, and remitted the matter for determination of the remaining issues (including pecuniary relief).

The High Court found that although the House B&B Mark was not deceptively similar for the purposes of section 120(1) of the TMA, the use of the mark in its immediate and broader context was likely to be misleading or deceptive under section 18(1) of the ACL, unlike what was found in the Full Court judgement.

The High Court therefore concluded that the Full Court misunderstood the primary judge’s reasoning and conflated the TMA and ACL claims. The Full Court was held to have over-focused on the marks and effectively re-ran the TMA inquiry. The Full Court also wrongly inferred that that because BBNT’s reputation was in the mark as a whole, GRBA’s use of ‘Bed & Bath’ could not mislead.

The High Court in this decision further reaffirmed the Australian Woollen Mills Ltd v F S Walton & Co Ltd evidentiary proposition, being: when a trader adopts a mark or get-up to appropriate a rival’s trade or reputation, the trader’s belief about market benefit can serve as a reliable expert opinion on likely deception, even without a dishonest intent to mislead. The primary judge’s findings of wilful blindness (as opposed to proven dishonesty) was therefore held to contain relevant and cogent evidence toward the objective likelihood of deception. Consequently, the High Court found that the Full Court erred in treating this evidence as of little or no assistance.

Key takeaways and impacts for brands and trade mark practitioners

This decision provides many useful conclusions and takeaways for both brands and trade mark practitioners when considering competitor brand logos and trade marks. This includes:

Name selection and descriptors on the shopfront

Category descriptors, such as ‘bed & bath’, on external storefronts can acquire source significance through longstanding unique use. Even if words are descriptive inside stores, external use in a similar styling may signal association. Therefore, brands and trade mark practitioners must be wary of both trade mark registrability and consumer law risks in this context.

Reputation and get‑up matter

Store design, co‑location, market history, and consumer familiarity can all be considered evidence of context that can tip otherwise ‘safe’ naming into misleading or deceptive conduct under the ACL. Brands entering adjacent or similar categories to competitors should ensure they differentiate get‑up and messaging to avoid any implied association.

Internal documents can be decisive

Emails, briefs, and brand rationales showing awareness of a rival and the intended market leverage can be treated as an expert indicator of likely deception, even without an actual intention to deceive. Brands should therefore consider the language and decision-making processes they use, and avoid any language that suggests they may have appropriated a rival’s reputation in creating their own branding.

Dual enforcement strategies

The miscarrying of the Full Court’s reasoning in this decision has demonstrated the differences between deceptive similarity under the TMA and misleading or deceptive conduct under the ACL. A brand may fail in bringing a TMA infringement claim but may succeed in bringing an ACL contravention where contextual factors are strong. Equally, a defendant’s trade mark clearance does not stop consumer law risks. Therefore, if bringing or defending similar claims, brands and trade mark practitioners should consider the impacts of both the TMA and ACL.

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Authored by:

Glen McGowan KC, Partner
Olivia Coburn, Special Counsel
Tilly Dalton, Graduate

Useful links
A link to the High Court decision is here: Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2025] HCA 50 (10 December 2025)
A link to the Full Federal Court decision is here: Global Retail Brands Australia Pty Ltd v Bed Bath ‘N’ Table Pty Ltd [2024] FCAFC 139 (31 October 2024)
A link to the primary judge’s decision is here: Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2023] FCA 1587 (14 December 2023)