Bed Bath 'N' Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2025] HCA 50 – Misleading and Deceptive Conduct and Trade Mark Infringement

The dispute involved two retailers in the homewares space and was focused on the use of branding elements and whether they fell afoul of the Trade Marks Act 1995 (Cth) (TM Act) and/or were likely to have misled or deceived consumers under section 18(1) of the Australian Consumer Law (ACL).  

This case is relevant for businesses seeking to establish new brands or expand into already competitive markets where similar branding or names may be likely to lead to consumer confusion. It demonstrates that breaches of misleading and deceptive conduct under the ACL may arise even in the absence of trade mark infringement. 

2. Case Summary 

Factual Background 

Bed Bath ‘N’ Table (BBNT) is an Australian homewares retailer that has traded throughout the country since 1976 selling ‘soft’ homewares such as bedding, towels, cushions and other related products.  

In 2021, Global Retail Brands Australia Pty Ltd (GRBA), which previously operated other retail stores such as ‘House Warehouse’ which focused on kitchenware and hard homewares, launched a new soft homewares brand called ‘House, Bed & Bath’ (House B&B). 

GRBA used the House B&B branding across various areas including in-store signage, website and promotional material. After GRBA started using the House B&B mark, BBNT commenced proceedings in the Federal Court of Australia, alleging:

- trade mark infringement under section 120(1) of the TM Act, as the House B&B mark was substantially identical or deceptively similar to BBNT’s registered marks; and 

- misleading or deceptive conduct by GRBA in contravention of s 18(1) of the ACL.  

BBNT’s Position 

BBNT argued that GRBA’s use of the House B&B mark and related branding in the soft homewares space was likely to mislead consumers into thinking there was an association with BBNT’s established brand, and that the use of the branding (which was subject to a registered trade mark) constituted both misleading and deceptive conduct and an infringement of its trade mark. BBNT emphasised its market reputation built over decades and provided some evidence of consumer confusion.  

GRBA’s Position 

GRBA argued that the House B&B mark was sufficiently distinct and was not deceptively similar to BBNT’s marks, so no infringement arose under the TM Act. It also argued that consumers could distinguish its stores (and relevant branding) from BBNT’s and that there was no basis to conclude that GRB’s conduct was misleading and deceptive within the meaning of the ACL.  

3. Legal Issues 

The proceedings focused on two key legal issues:

1. whether the House B&B mark infringed BBNT’s registered marks under the TM Act; and

2. whether GRBA’s use of the House B&B brand constituted misleading or deceptive conduct (or was likely to mislead and deceive) in contravention of s 18(1) of the ACL.  

The primary judge found that GRBA did not infringe BBNT’s trade mark, but found that it had contravened s 18(1) of the ACL by engaging in conduct that was likely to mislead and deceive consumers. On appeal, the Full Court of the Federal Court of Australia overturned the primary judge’s findings of misleading and deceptive conduct. 

4. Decision and Grounds  

On 10 December 2025, the High Court allowed BBNT’s appeal from the Full Court and reinstated the primary judge’s orders, concluding there was no error in the primary judge’s reasoning. Consequently, the High Court held that GRBA’s conduct was misleading or deceptive or likely to mislead or deceive under s 18(1) of the ACL, even though there was no trade mark infringement under s 120(1) of the TM Act.  

The High Court’s reasoning highlighted several key principles, including:

1. The High Court emphasised that inquiries under the TM Act and s 18 of the ACL serve different purposes. Trade mark infringement under the TM Act focuses on whether marks are deceptively similar in isolation, whereas s 18 requires examination of conduct in its broader market and consumer context, including reputation and how consumers perceive the parties’ branding in trade or commerce.  

2. The High Court reiterated that whether conduct is misleading or deceptive depends on the broader context of the parties’ reputation and consumer understanding. While the House B&B mark was not deceptively similar in a strict trade mark sense, the manner in which it was used was capable of misleading consumers.  

3. The primary judge’s finding that GRBA’s executives exhibited “wilful blindness” as to the risk of consumer confusion was held to be a relevant consideration in the factual assessment of whether the conduct was misleading or deceptive.  

4. Key Takeaways 

This decision delivers several important lessons for brand owners and businesses.  

Firstly, registered trade marks provide important legal rights, but this case reinforces that the ACL can offer broader protections. Even where a mark is not strictly considered to infringe under the TM Act, conduct may still be prohibited if it misleads or deceives (or is likely to mislead or deceive) consumers.

Further, a long-established reputation and distinct position in the market can influence whether consumers are likely to be confused by similar branding. Businesses should appreciate that contextual market understanding is vital when assessing potential legal risk.  

Finally, the use of a mark across signage, promotions, digital platforms, receipts, and other touchpoints can amplify consumer perceptions of association, even if the underlying mark does not directly infringe. Importantly, evidence of internal discussions or attitudes that may be discoverable and relied upon in Court, such as evidence in this case that evidenced wilful blindness on the part of GRBA's executives, may inform judicial assessment of misleading conduct. Thus, companies should take potential confusion seriously and ensure genuine consideration of branding risks is properly considered and documented.

Conclusion 

The Bed Bath ‘N’ Table High Court decision demonstrates that consumer protection laws can capture commercial conduct that may not constitute a breach under the TM Act. For businesses operating in competitive markets, it underscores the importance of holistic risk assessment that considers not just the legal distinctiveness of a mark, but its impact on consumer perceptions and market context. By adopting rigorous brand review processes and seeking early legal guidance, companies can avoid costly disputes and build stronger, resilient brands. 

If you need tailored advice, you can contact Samantha Cobcroft, Associate, and Watson Webb's litigation and intellectual property teams.

The High Court case can be accessed here.

Disclaimer

This article is provided for general information purposes only and does not constitute legal advice. It is not intended to address the specific circumstances of any individual, business or franchise, and reliance should not be placed on it as a substitute for obtaining legal advice tailored to your particular situation. Legal advice should be sought before taking any steps in relation to misleading and deceptive conduct and trade mark infringement