Global Retail Brands Australia Pty Ltd v Bed Bath ‘N' Table Pty Ltd

Global Retail Brands Australia Pty Ltd (GRBA) appealed against a decision of the primary judge in which she found that GRBA had engaged in misleading or deceptive conduct and trade mark infringement by using the mark "HOUSE BED & BATH" in relation to its soft homewares retail stores. Bed Bath 'N' Table Pty Ltd (BBNT) cross-appealed against the primary judge’s decision to dismiss its claims for trade mark infringement. The central issue in this case was whether GRBA’s use of the mark “HOUSE BED & BATH” constituted misleading or deceptive conduct under sections 18(1) and 29(1)(g) and (h) of the Australian Consumer Law (ACL). The Court also considered whether GRBA’s mark was deceptively similar to BBNT’s mark “BED BATH ‘N’ TABLE”, thereby constituting trade mark infringement.

The Court found that the primary judge’s conclusion that GRBA’s conduct was misleading or deceptive was not supported by the evidence. The Court held that BBNT had not established that it had a reputation in “BED BATH” or “BED & BATH” alone. The Court also found that the primary judge’s evaluation of the confusion evidence was flawed as she gave it limited weight despite acknowledging that it showed some instances of consumer confusion. The Court held that the evidence did not justify the primary judge’s finding that GRBA’s conduct was likely to mislead or deceive. Additionally, the Court found that the primary judge was correct in concluding that GRBA’s mark was not deceptively similar to BBNT’s mark and therefore did not constitute trade mark infringement. The Court held that BBNT’s cross-appeal should be dismissed as the primary judge’s decision to dismiss the claims for trade mark infringement was correct.

The Court allowed GRBA’s appeal, dismissed BBNT’s cross-appeal, set aside the declarations, injunction, and other orders made by the primary judge, and ordered that the originating application be dismissed. The Court also ordered that GRBA pay BBNT’s costs of the proceeding, and that BBNT pay GRBA’s costs of the appeal and the cross-appeal.