Can common words like Bed & Bath be protected as brand names

Can common words like Bed & Bath be protected as brand names

When is a “bed” not just a bed, and a “bath” not just a bath?

That deceptively simple question lies at the heart of one of Australia’s most closely watched trade mark and consumer law disputes: Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd.

For nearly 50 years, Bed Bath ‘N’ Table (BBNT) has been a familiar name in soft homewares. Global Retail Brands Australia (GRBA), the powerhouse behind the House brand, has dominated in hard homewares for almost as long. But when GRBA ventured into BBNT’s soft homewares territory under the name House Bed & Bath, sparks flew.

The fight has wound its way from the Federal Court to the Full Court, and now all the way to the High Court, which heard a special leave appeal in August 2025. The outcome could reshape the way reputation, consumer perception and brand protection are handled under Australian law.

The Background

Established in 1976, BBNT holds a 30% share of Australia’s soft homewares market, trading under the registered mark Bed Bath ‘N’ Table. Its stores are styled in a classic Hampton’s aesthetic — clean lines, timber floors, no discount signage.

Since 1978, GRBA has operated House stores selling kitchenware and hard homewares. In 2021, it expanded into soft homewares with a new brand: House Bed & Bath. It also mimicked the Hampton’s style look of BBNT stores.

BBNT which owns Bed Bath ‘N’ Table was not amused. It sued GRBA for:

• Trade mark infringement of its registered Bed Bath ‘N’ Table mark;
• Misleading or deceptive conduct under the ACL; and
• Passing off, a common law protection for business reputation.

The First Instance Decision

Justice Rofe delivered a nuanced judgment:

• The presence of “House” in GRBA’s mark and the absence of “N’ Table” meant the marks weren’t deceptively similar.
• Despite no independent reputation in “Bed & Bath” alone, BBNT’s long history and consumer perception meant GRBA’s use of House Bed & Bath was misleading.

The judge emphasised that if a competitor deliberately adopts elements of another’s branding, it can be presumed they intended to gain from confusion.

Although GRBA’s founder, Solomon Lew, wasn’t found to be deliberately dishonest, his “wilful blindness” to the risk of confusion was enough to tip the scales.

GRBA was therefore restrained from using House Bed & Bath.

The Appeal

On appeal, the Full Court took a stricter view

The Court overturned the earlier judge’s findings, holding that BBNT’s reputation lay in the full phrase Bed Bath ‘N’ Table, not in “Bed & Bath” alone. Consumers might see similarities, but that wasn’t enough — there had to be a real chance of deception, not just “wondering” about a connection.

Again, BBNT failed. The Court stressed that reputation plays no role in assessing deceptive similarity under trade mark law — only the marks themselves are compared.

In short: GRBA could continue with House Bed & Bath.

The High Court

It has now gone to the High Court.

The High Court is Australia’s top court, with seven judges who make the final call on important legal questions.

Here, they had to ask two key questions:

• If a business has a strong reputation in a composite name (Bed Bath ‘N’ Table), but not in a truncated form (Bed & Bath), can competitors use part of that name without infringing rights?
• If a competitor knows about another brand’s reputation and presses ahead with similar branding without proper checks, is that enough or must there be deliberate dishonesty?

Why This Case Matters

For brand owners, the implications are significant:

1. Registration protects the mark as filed, but doesn’t automatically cover truncated or colloquial versions unless they too are registered or have independent reputation.
2. Even if trade mark infringement fails, businesses may still succeed under the ACL or passing off — but only if they can show more than mere “wondering” by consumers.
3. Expanding into a rival’s territory without legal clearance — particularly when adopting parts of their brand — risks costly litigation.

The High Court’s decision will clarify whether reputation in a composite mark can “spill over” into truncated forms, and whether wilful blindness suffices to trigger liability.

For now, businesses should:

1. Try and register truncated/sub-brand variations of their marks;
2. Keep strong records of consumer recognition;
3. Seek legal advice before brand extensions, especially into competitor markets; and
4. Be wary of adopting “descriptive” terms if competitors have built up decades of use.

The Bed Bath ‘N’ Table case is now before the High Court, and we don’t yet know what the final outcome will be. What is clear, however, is that the line between trade mark rights, consumer law, and reputation is complex.

At our firm, we love getting to know your brand inside out and working with you to create tailored strategies that protect not just your core marks, but also the variations and reputational elements that competitors might try to borrow. We call this a defensive strategy — and it’s all about protecting your brand from the outside in.

Further reading

Creating Sub-Brands: The Power of Family Trade marks:
https://sharongivoni.com.au/creating-sub-brands-the-power-of-family-trade-marks/

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.