High Court Rules for Bed Bath ’N’ Table: Similar Branding Can Still Be Misleading

If your business uses similar names or brand elements to a competitor, this recent High Court decision could have implications for you — even if a legal challenge around trade marks fails, you could still be in trouble.

This High Court decision clarifies that businesses must consider more than just whether another brand uses a similar name; they must also think carefully about how that name is presented and used in the real world.

Why this decision matters

You may be a small business, a franchise operator, or part of a national retail brand. Either way, you need to understand how similar names and brand elements can create confusion in the minds of customers. This case, Bed Bath ’N’ Table v Global Retail Brands Australia, shows that even if you legally clear a brand name, how it looks and feels can still cause problems — potentially leading to claims of misleading customers under the Australian Consumer Law.

What the Court Said

Bed Bath ’N’ Table (BBNT) has been in business since 1976 and built a strong reputation with customers in homewares, with a distinctive shopfront and brand identity.  In 2021, Global Retail Brands Australia (GRBA), which owns a retail homewares business under the brand “House”, opened a chain of stores named House Bed & Bath, with a look that was very similar to BBNT’s — especially on the shopfront, website, and advertising.

BBNT took legal action in three ways:

1. Trade mark infringement: Under the Trade Marks Act 1995, they argued their trade mark was being infringed.
2. Consumer law breach: Under the Australian Consumer Law, they argued GRBA was likely to mislead consumers.
3. Passing off (brand confusion): They also claimed their reputation was being damaged by the confusion created by GRBA.

What Happened in the Courts

• The judge in the first instance found that while GRBA did not infringe the trade mark — the names were not similar enough — however, they did act in a way likely to mislead or deceive customers.
• The Full Federal Court on appeal took a different approach, saying BBNT had not proven the case well enough under consumer law.

The High Court agreed with the first judge — that even though there was no trade mark infringement, the use of a similar name and look was misleading to customers.

What This Means for Your Business

Even if you choose a name that does not infringe someone else’s trade mark, you can still be in breach of consumer law if your branding and presentation — especially your shopfront — is likely to confuse consumers.

Here is how to avoid that:

1. Be careful with names that are too similar

Choosing a name that sounds, looks or reads like a competitor’s name is risky, even if that name is not protected by a trade mark.

2. Think about the store design and layout

In this case, the way the new stores were styled and named gave the impression that they were part of BBNT’s chain — or at least closely connected to it. If you are in a similar industry, and your branding (even the way you design your shop) looks too close to a known brand, it could be seen as misleading.

3. Internal decisions matter

The court also considered internal documents used by GRBA during the brand development process — these showed they knew BBNT existed and may have tried to leverage their reputation indirectly. Such communication can be powerful evidence of misleading or deceptive conduct, even if it is not done intentionally.

What You Can Do Now

This case sends a clear message: when creating or launching a brand name or shopfront, think beyond the trade mark. Consider these questions:

• Could a customer mistake us for a bigger brand operating nearby?
• Does the name or design make the brand feel too close to someone else who has built up a reputation in this industry?
• Are we using terms that describe the products — like bed and bath — in a way that gives the store an identity that looks like it already exists?

What Happens Next

While this is a major case for the legal community, its impact is practical for all businesses that market to Australian consumers. In the coming months, we may see more cases where businesses are held to account for the way their brands “look and feel” to customers.

If your business is using names that are close to other established businesses in your category, now is the time for a legal review.

If you need help checking your brand or shopfront for these risks, please contact us.