Bed Bath N' Table Pty Ltd v Liberty Procurement Co. Inc

Bed Bath N' Table Pty Ltd (the applicant) sought to register a trade mark for "BED BATH & TABLE" in class 24 for goods including bed linen, table linen, and towels. Liberty Procurement Co. Inc (the opponent) opposed the registration on the basis of its prior Australian trade mark registration for "BED BATH & MORE" in class 24, and its prior use of that mark. The delegate of the Registrar of Trade Marks had allowed the application to proceed to registration. The applicant appealed this decision to the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark "BED BATH & TABLE" was deceptively similar to the opponent's registered trade mark "BED BATH & MORE" and its prior used mark, within the meaning of section 44 of the *Trade Marks Act 1995* (Cth). This involved an assessment of whether an ordinary consumer, with imperfect recollection, would be likely to be confused or deceived into believing that the goods offered under the applicant's mark originated from the same source as the goods offered under the opponent's mark.

Justice Kirov considered the marks as a whole, noting the common elements "BED BATH" and the differing final words "TABLE" and "MORE". He applied the principles established in cases such as *Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd* and *Parke Davis & Co Ltd v. Sanofi-Aventis Deutschland GmbH*, which emphasise that the comparison must be between the marks as they are likely to be encountered by the public. His Honour found that while there were similarities, the distinctiveness of the final words "TABLE" and "MORE" was significant. The ordinary consumer would likely distinguish between the two marks, particularly given the descriptive nature of "BED BATH" in relation to the goods in question. The Court concluded that there was no real likelihood of deception or confusion.

The appeal was allowed, and the delegate's decision was set aside. The Court ordered that the applicant's trade mark application proceed to registration.