The High Court has found in favour of Bed Bath N’ Table over a lower court ruling that a rival brand, House Bed & Bath, was ‘passing off’.

The High Court of Australia has granted an appeal its judgment in the case of Bed Bath ‘N’ Table Pty Ltd (BBNT) v Global Retail Brands Australia (GBRA) over the latter’s use of its homeware brand, House Bed & Bath.

Under both the Competition and Consumer Act 2010 and the Trade Marks Act 1995, the court found there to be a likeness between the two brands, in both product and branding.

The High Court’s documents on the case describe this likeness as “misleading or deceptive”, and a violation of Australian Consumer Law. “None of BBNT’s competitors used ‘bed’ or ‘bath’ in their name,” the primary judge reported in the case documents.

“Until the opening of GRBA’s first soft homewares store using the House B&B mark and branding, BBNT had been the only retailer in Australia that used the words “bed” and “bath” in its name for over 40 years.”

Both GRBA’s founder, director, and executive chairman, Steven Lew, and Meghan McGann, GRBA’s head of brand and media, gave evidence to the case. Lew offered the defence that the House Bed & Bath name was a “category descriptor” for customers.

The court found the words ‘bed’ and ‘bath’ were not “performing a purely descriptive role”. It added: “Neither BBNT nor GRBA sell beds or baths. Both sell bed and bath-related products, such as sheets and towels. In both marks, the words ‘bed’ and ‘bath’ are more allusive than directly descriptive.”

The case will now be sent back to a judge of the Federal Court of Australia, who will decide the remaining issues, including consideration of the appellant’s request for financial compensation.