Does the Bed Bath ‘N’ Table case apply to your business?
When businesses think about the legal risks of a brand name or logo, they usually focus on trade mark law:
Is the name registered? Will it infringe someone else’s logo?
But Australian law goes further than trade marks.
Under the Australian Consumer Law (ACL), businesses must not mislead or deceive consumers about their goods or services. Importantly, this obligation extends beyond advertising claims and applies directly to branding decisions, including names, store layouts, and overall presentation.
Section 18 of the ACL prohibits conduct that causes, or is likely to cause, the average consumer to form a false impression. There is no requirement that the conduct be intentional. Even branding choices that seem commercially innocent can breach the law if they leave consumers with the wrong overall impression.
The High Court’s decision in Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd confirms that passing a trade mark search is not a “get out of jail free” card.
The case in brief
Bed Bath ‘N’ Table (BBNT) had sold soft homewares in Australia since the 1970s. Over time, consumers came to associate the words “bed” and “bath” together on shopfronts with BBNT.
Global Retail Brands (GRBA) operated “House” stores selling kitchenware. In 2021, GRBA launched House Bed & Bath stores selling soft homewares, using store designs it accepted were similar to BBNT’s.
BBNT argued that this branding would lead shoppers to assume the new stores were connected to BBNT.
Why trade mark law didn’t save GRBA
GRBA succeeded in the trade mark claim. The words “House Bed & Bath” were not considered close enough to BBNT’s registered trade mark when assessed strictly under trade mark law.
However, BBNT relied on consumer law instead.
The High Court emphasised that consumer law asks a different question:
What impression does this branding create for consumers in the real world?
Why the conduct was misleading
The Court assessed the overall context, including:
- BBNT’s 40-plus years in the soft homewares market
- BBNT’s unique use of “bed” and “bath” together on external signage
- Consumer understanding of “bed” and “bath” as category labels, not brand names
- The similar look and feel of the two stores
- GRBA’s awareness that BBNT was the dominant market player
Even without an intention to deceive, the Court found that shoppers were likely to infer a connection between the two businesses. That was enough to breach section 18 of the ACL.
Key lessons for your brand
1. Honest branding can still mislead
Australian consumer law focuses on outcomes, not intentions. If your branding leaves consumers with the wrong impression, you may still be in breach.
2. Courts assess the overall impression
Your name, logo, fonts, colours, store design, reputation, industry history, and customer expectations all matter. Legal risk is assessed holistically.
3. Familiarity can be risky
Even if your branding does not infringe a trade mark, using elements strongly associated with a competitor can imply a connection — whether you intended it or not.
4. “We didn’t know” usually means “we didn’t check”
The Court was critical of GRBA’s failure to properly consider the risk of confusion before launch. Ignoring risk early places businesses in a worse position later.
Brand strategy often pushes close to what feels familiar. However, being different enough for trade mark purposes is not the same as being legally safe.
Before launching, ask:
- What would an ordinary customer assume at first glance?
- Could they think there is a connection that does not exist?
If there is a risk, treat it as a legal issue, not just a marketing one. Test consumer assumptions, document your decision-making, and do not rely on trade mark clearance alone.
Different enough isn’t always lawful enough.
If you or someone you know needs assistance, please contact us by calling our Sutherland office at 9525 8688 – or emailing your enquiries to wmd@wmdlaw.com.au
Sources
Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2025] HCA 50
