The Federal Court has ordered Emma Sleep to pay $15 million in penalties for false or misleading representations under the Australian Consumer Law (ACL).
The recent decision of the Federal Court of Australia in Bodum AG v H.A.G Import Corpn (Australia) Pty Ltd [2026] FCA 238 illustrates that even deliberate copying of a competitor’s design elements does not necessarily breach the Australian Consumer Law or amount to passing off.
The High Court has clarified that even in the face of a finding that trade mark infringement does not arise due to lack of deceptive similarity, the conduct of a party in using that trade mark may still amount to misleading or deceptive conduct under the Australian Consumer Law.