Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2025] HCA 50
Summary
On 10 December 2025, the High Court of Australia (HCA) unanimously ruled that the use of the trade mark “House Bed & Bath” was misleading or deceptive conduct.
The Facts
This case originated as a trade mark dispute between Bed Bath ‘N’ Table Pty Ltd (BBNT) who operates stores under the trade mark “Bed Bath ‘N’ Table”, and Global Retail Brands Australia Pty Ltd (GRBA) who began operating a new homewares store under the trade mark “House Bed & Bath” (pictured below).
At first instance, Justice Rofe, found that GRBA’s “House Bed & Bath” trade mark did not infringe BBNT’s BED BATH ‘N’ TABEL registered trade mark, however use of “House Bed & Bath” by GRBA constituted misleading or deceptive conduct.1 On appeal, the Full Federal Court (FFC) held that GRBA’s trade mark did not infringe BBNT’s mark, nor was the use of “House Bed & Bath” misleading or deceptive, and set aside the primary judge’s injunction.2
BBNT appealed to the HCA in relation to the finding that GRBA had not engaged in misleading or deceptive conduct.
We previously reported on the matter after the FCC decision, for more information on the facts refer here: Another trade mark stoush ‘put to bed’ – McCullough Robertson Lawyers.
The Decision
On 10 December 2025, the HCA ruled that GRBA’s use of “House Bed & Bath” for its homewares store constituted misleading or deceptive conduct.
The HCA adopted the primary judge’s reasoning, ruling that the FFC had unduly focused its analysis on whether the trade marks were deceptively similar under s120(1) of the Trade Marks Act 1995 (Cth) (TMA) and failed to consider the immediate and broader context of the impugned conduct, conflating the required inquiries under s18(1) of schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). The HCA found that:
- A finding that a trade mark is not deceptively similar under s120(1) of the TMA does not preclude a finding that use of the mark constitutes misleading or deceptive under Australian Consumer Law. A contravention of s18(1) of the Australian Consumer Law ultimately involves an objective characterisation of the conduct of the party viewed as a whole and whether that conduct is misleading or deceptive, or is likely to mislead or deceive;
- In the boarder context, BBNT and GRBA have considerable reputations in relation to their respective business sectors and store branding that consumers recognise. BBNT’s long-standing use of the words “bed” and “bath” in that order has made them roll off the tongue, despite the words not appearing in their sequential order. BBNT’s well-known pairing of the words was “undoubtedly” part of the appeal for GRBA’s use of “Bed & Bath”;
- While it was found that GRBA did not have a commercially dishonest intention to appropriate part of BBNT’s trade and reputation, dishonest intention is not an element of s18(1) of the Australian Consumer Law. GRBA’s “wilful blindness” to the prospect of consumer confusion was relevant to the objective question of contravention of s18(1) as providing further context; and
- GRBA’s use of “House Bed & Bath” is likely to entice consumers into their stores under the belief that they have some association to BBNT, and as such constitutes misleading or deceptive conduct.
The HCA therefore allowed BBNT’s appeal and reinstated the primary judge’s injunction. The case has now been remitted to the Federal Court for determination of the remaining issues, including BBNT’s claim for compensation.
Key takeaways
This case highlights that brand reputation and competitor analysis in the relevant market is key, and businesses must exercise caution when developing new brands or expanding into new product categories. A ‘wilful blindness’ to potential confusion will not be sufficient. Care should be taken to assess both the trade mark and broader common law landscape noting that trade mark infringement and misleading or deceptive conduct are distinct causes of action.
Before adopting new branding, businesses should be mindful of potential similarities with brands already in the market and take appropriate steps to mitigate associated risks, including consumer confusion.
If you would like advice on a new brand, availability searches, or to discuss IP strategy, please contact our Digital and IP team.
[1] Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd (2023) 182 IPR 393.
[2] Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd (2024) 424 ALR 119.
