Global Retail Brands Australia Pty Ltd v Bed Bath 'N' Table Pty Ltd [2024] FCAFC 139

Federal Court of Australia Global Retail Brands Australia Pty Ltd v Bed Bath 'N' Table Pty Ltd [2024] FCAFC 139 Appeal from: Bed Bath 'N' Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2023] FCA 1587 Bed Bath 'N' Table Pty Ltd v Global Retail Brands Australia Pty Ltd (No 3) [2024] FCA 226

File number: VID 278 of 2024

Judgment of: NICHOLAS, KATZMANN AND DOWNES JJ

Date of judgment: 31 October 2024

Catchwords: CONSUMER LAW – misleading or deceptive conduct – where, by its use of trade mark "HOUSE BED & BATH" (appellant's mark) in relation to soft homewares in a market in which respondent's trade mark "BED BATH 'N' TABLE" (respondent's mark) has a significant reputation, appellant found to have contravened ss 18(1) and 29(1)(g) and (h) of Australian Consumer Law – where primary judge found appellant's mark not deceptively similar to "BED BATH 'N' TABLE" but found appellant's use of its mark misleading and deceptive – whether latter finding erroneous – where primary judge found that respondent had no independent reputation in "BED BATH" or "BED & BATH", that there had been substantial and common third party use of "bed" and "bath" and "bed & bath" as navigational or category descriptors – where primary judge found that respondent's reputation was "crucial" to conclusion that it engaged in misleading and deceptive conduct – relevance of respondent's reputation in respondent's mark – where primary judge did not find that appellant intended to mislead or deceive consumers – where primary judge found that appellant's "wilful blindness" to risk of confusion provided a highly relevant expert opinion on whether appellant's conduct was likely to mislead or deceive – where respondent contended that some consumers tended to shorten "BED BATH 'N' TABLE" to "BED BATH" and that primary judge should have found appellant intended to mislead or deceive consumers – relevance of "wilful blindness" finding – whether finding of misleading or deceptive conduct should be affirmed TRADE MARKS – infringement – where primary judge found that appellant did not infringe respondents' marks – whether primary judge erred in holding that appellant's mark was used as a single composite trade mark – whether incorporation of "BED & BATH" likely to confuse consumers – whether similarities in respective marks would imply an association with respondent and/or its mark – whether primary judge placed undue weight on presence of "HOUSE" mark within appellant's mark – whether primary judge should have found that respondent intended to mislead and deceive – whether primary judge should have found that appellant's mark and respondent's mark were deceptively similar