Retail Trademark Wars: The Year of Epic Fails and Lessons Learned for 2026

Aparna Watal, Partner at Halfords IP explores the biggest retail trademark fails of 2025 and the lessons brands must take into 2026.

Why 2025 Became a Defining Year for Retail Trademark Disputes?

2025 was a retail trademark masterclass in what happens when brand ambition outruns legal discipline. In this feature, we take a look at what went wrong, what the courts said in some cases, and the battles currently in motion with leading brands. We also deep dive into what every retailer can consider when protecting their brand for the year ahead.

Cinnabuns v Cinnabon heat up IP debate

Earlier this year, a Melbourne bakery’s trade mark “Cinnabuns” ran head-on into U.S. giant Cinnabon. The owner claimed ignorance; the law doesn’t care.

Under section 120 of the Trade Marks Act 1995 (Cth), infringement turns on whether the marks are deceptively similar and used in relation to goods or services that are the same as, or closely related to, those covered by the registration. The infringer’s intent or awareness is not material.

Do this instead: Run full availability searches before launch. A one-hour search beats a five-figure rebrand. Avoid phonetic twins and misspellings of existing trade marks (Cinnabuns/Cinnabon; Donutime/Donut Time) are accidents waiting to happen.

Dupe culture ‘epidemic’: Aldi’s Mamia Baby Puffs

“Dupe” products (cheaper alternatives closely mimicking premium brands) have surged in Australia. The decision in Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452 is the clearest warning shot yet.

In that case, Aldi’s Mamia Baby Puffs were found to infringe copyright in the Baby Bellies packaging owned by Hampden Holdings. While Aldi avoided liability under trade mark law, the Federal Court held that its packaging infringed Hampden’s copyright.

The case highlights a familiar frustration: trade mark protection alone often falls short when competitors copy your look, feel, product shape or design, and marketing language to create the same connotation without duplicating the name or logo.

Dupes pose a real challenge for businesses. However, the issue isn’t that IP protection “doesn’t work” against dupes, it’s that too often brands rely on narrow, weak or poorly aligned rights that fail when dupes strike. You need strong IP to fight dupes; trade mark protection for distinctive elements of your product that signal source backed by registered designs, copyright, and consumer-law safeguards. When protection is half-measured, it’s not IP that fails, it’s the strategy.

It’s also important to note that dupe culture won’t end brand enforcement, it will redefine it. The speed at which dupes hit the market makes real-time takedowns impossible, but this is prompting a return to legal deterrence through more structured filings and strategic opposition programs.

Trade Marks Office blunder: the Mercato Centrale lesson

In Caporaso Pty Ltd v Mercato Centrale Australia Pty Ltd [2024] FCAFC 156, the Full Federal Court cancelled a long-standing trade mark registration after finding false and misleading statements were made to secure acceptance of the mark. What seemed like minor overstatements about use proved fatal.

Unfortunately, providing false or misleading information to IP Australia, even inadvertently, can lead to cancellation under section 62(b) of the Trade Marks Act.

Instead, treat every declaration and evidence exhibit as if it will be cross-examined, because it can be. Don’t “polish” evidence or overstate use. Regulatory integrity is as crucial to brand protection as much as distinctiveness itself.

Nike ‘Total 90’ Trademark Dispute

Most recently, Nike lost the trademark rights to its Total 90 (T90) brand due to failing to maintain the trademark registration. In a twist of events, ‘Total90 LLC’ commenced legal action against Nike, alleging trademark infringement related to recent T90 releases.

The Nike TOTAL 90 dispute is a powerful reminder that trade marks require active care. Too often, particularly during economic downturns or internal restructuring, companies treat trade mark maintenance as a dispensable line item. Registrations are allowed to lapse on the assumption that the brand is dormant, the market has moved on, or that no one else will be interested. But as this case illustrates, the moment protection drops away, the door opens for third parties to move in.

When that happens, a business is left relying entirely on its ability to prove continued use of the mark. That is a difficult evidentiary burden. In Nike’s case, the company is relying on the argument that its TOTAL 90 mark had remained in commercial circulation, even if in a more limited way and even if its registration was allowed to lapse. That continuity of use enabled Nike to further argue that it had not abandoned its rights, despite the registration having lapsed. But most businesses, particularly those managing large or historic portfolios, would struggle to meet that standard.

Courts do not accept symbolic or contrived acts of ‘defensive’ use. They look for genuine, good-faith trading activity that demonstrates the brand remains alive in the market. For heritage brands, the challenge is even greater. A once-famous name may not be enough; historic recognition does not translate into current legal protection. A mark that has not been used for several years, or whose use cannot be substantiated through proper records, is treated as abandoned.

This case underscores a broader truth about brand stewardship: maintaining registrations and documenting use is far more cost-effective, and strategically prudent, than attempting to revive rights after they have been lost. A lapsed registration invites conflict. Rebuilding a rights position requires expensive legal action, exposes the company to uncertainty, and risks the loss of valuable brand equity built over decades.

The retail trademark disputes to watch in the coming year

There are a number of appeals set to redefine key principles in trade mark law in 2026:

Bed Bath ‘N’ Table v Global Retail Brands Australia

Two homeware heavyweights, Bed Bath N’ Table and House, have been fixtures in Australian retail for decades. Trouble started when House launched a new sub-brand, House Bed & Bath.

Bed Bath N’ Table sued for trade mark infringement, misleading and deceptive conduct, and passing off. The Court found the words “Bed & Bath” were in descriptive use by several retail outlets and that the differences in the parties’ marks were “substantial and obvious to anyone but the most careless observer”.

Further, it was held that there was no independent reputation in ‘BED BATH’ or ‘BED & BATH’. Instead, Bed Bath N’ Table’s reputation was in the mark ‘’BED BATH ‘N’ TABLE’ as a whole. Even if the addition of “Bed & Bath” might prompt some consumers to wonder whether the two retailers were connected, that alone does not amount to conduct likely to mislead or deceive.

Bed Bath N’ Table has appealed the decision to the High Court seeking clarity on the role of reputation of a mark in passing off claims and misleading or deceptive conduct.

The High Court’s decision will be relevant to supermarkets and suppliers who:

Launch new ranges that echo well-known category cues (“Farm House,” “Kitchen Table,” etc.)
Extend established brands into adjacent categories (snack to meal kits, clothing to footwear, skincare to supplements); or
Rely on generic descriptors to grab attention on the shelf.

Katy Perry v Katie Perry Case

Australian designer Katie Taylor launched a fashion label KATIE PERRY in 2007 and applied to register it as a mark for clothing in late 2008, by which time she knew of the US singer Katy Perry. The singer’s company later sought cancellation of Taylor’s registration, alleging the singer’s reputation in Australia pre-dated and extended into clothing.

The Full Federal Court upheld the cancellation ground, finding that the singer’s fame could reasonably cause confusion in the clothing field and that Taylor had registered despite knowledge of that reputation. Taylor has appealed to the High Court.

In practical terms, if the High Court sides with the singer, supermarkets will need tighter clearance protocols for new lines, especially influencer collaborations, lifestyle sub-brands, and merchandise crossovers. Fame, in 2025, may travel faster and wider than packaging design ever could.

Swim Shady vs Slim Shady Case

A Sydney couple selling beach umbrellas under the ‘Swim Shady’ brand are currently going head-to head in an international legal battle with US rapper Eminem, who claims the brand name closely resembles the term ‘Slim Shady.’

Earlier this year, the brand filed a trademark in the US for the term “Swim Shady”, which was granted. Shortly afterwards, Eminem’s team filed a petition to cancel the trademark. Eminem objected to the ‘Swim Shady’ trademark on several grounds, including one relating to consumer law: that the umbrella brand could mislead or deceive customers into thinking they’re buying a product associated with the rapper. He also accused the Sydney-based brand of creating a “false association” with the rapper. Eminem continues to sell official Slim Shady merchandise – one of several income streams that has built his net worth to a reported $US250 million.

Eminem trademarked the name Slim Shady in the US in 1999 with the release of his album at that time. However, he only filed a trademark for the Slim Shady name in Australia in January 2025.

Swim Shady contends the two parties are in significantly different industries, and that a beach and lifestyle wear retail brand in Australia is unlikely to be confused with the alter ego of a US rapper. Swim Shady has also filed non-use applications against Eminem’s Shady and Shady Limited trademarks in Australia, arguing they have not been consistently used.

What every brand should do now:

You don’t need a law degree to stay out of the next Brand Fails list. Here are three habits every serious brand (and supermarket supplier) should hardwire into their process:

Build Brand Hygiene: Search it, file it, protect it: Strong brands don’t just happen; they are built on discipline. Before you launch, consult a trade marks expert and run a full clearance search where appropriate. Before you start launching, file to register your mark. Before you scale, lock in layered protection: trade marks for your name and cues, design rights for shape and packaging, copyright for artwork.

Prove it and play it straight: Bad records can lose otherwise strong cases. Keep dated packaging, shelf photos, ads, invoices, and sales data to show genuine use. And when you make statements to regulators or courts, keep them honest. Exaggeration kills credibility. Integrity is part of your IP armour; brands that bluff rarely survive scrutiny.

Design for enforcement and teach your team: If it’s not built to be defended, it’s built to be copied. Train your marketing and buying teams to spot red flags, whether that is copycat “dupes” or risky influencer tie-ins. A one-page “don’t do this” sheet can save you a year in litigation. Make sure your manufacturer, supplier and distributor contracts clearly identify IP ownership, prohibit unapproved variants, and give you the right to inspect and enforce those rights.

This article was first published on December 16, 2025 by Power Retail, Australia’s leading industry hub providing news, data, research and insights for e-commerce professionals, at https://powerretail.com.au/retail-trademark-wars-the-year-of-epic-fails-and-lessons-learned-for-2026/

Contact: Aparna Watal (Aparna.Watal@halfords.com.au)

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