The Federal Court has allowed Noot Drinks Co to rely on expert reports from a drinks industry professional in Bickford’s trademark infringement case over the word ‘Spritz’.
Federal Court Justice, Patrick O’Sullivan, has ruled that two expert reports prepared by bartender and venue owner, Cara Devine, can be received into evidence in Bickford’s Australia’s trademark infringement proceedings against Noot Drinks Co, overruling most of Bickford’s objections.
Bickford’s has been the registered owner of Australian trademark number 607675 for the word ‘SPRITZ’ in class 32 for “non-alcoholic soft drinks” since 26 July 1993. It alleges Noot has infringed the mark. Noot director, Christian Barton, is the second respondent.
According to the judgment, one of the issues in the case is whether Noot has used the signs ‘NEGRONI SPRITZ’ and ‘LIMONCELLO SPRITZ’ on its products as a trademark. A separate question is whether, if they were used as a trademark, those words are deceptively similar to Bickford’s registered mark.
Noot sought to tender two reports by Devine, saying she has worked in the drinks industry for 15 years as a bartender, manager and venue owner, has consulted on alcoholic and non-alcoholic cocktails, contributes regularly to industry magazines, and has written two cocktail books, both of which include non-alcoholic recipes.
Bickford’s objected on four grounds: that Devine had acted as a “fact finder”; that the reports were not relevant to the issues in dispute; that they contained factual observations and subjective understanding rather than opinion; and that her opinions were not adequately based on expertise or on identified facts.
On relevance, Bickford’s argued the reports dealt with Devine’s own observations rather than how ordinary Australians generally understand the words, addressed a point in time not relevant on the pleadings, and dealt in part with alcoholic drinks when the trademark covers non-alcoholic drinks only.
Justice O’Sullivan found those matters went to the weight the court gives the evidence, not whether it is admissible.
“I have no hesitation in accepting that Ms Devine has relevant expertise,” Justice O’Sullivan said.
He said Devine’s opinions, “may not be expressed in the type of form that one might expect, for example, from a forensic accountant or forensic engineer accustomed to providing expert evidence in a well-recognised discipline”, but they were sufficient for the court and Bickford’s to determine they were based on her experience applied to known or assumed facts, and for Bickford’s to challenge her in cross-examination.
The material Devine relied on, including hyperlinked documents, was found to be admissible under section 219 of the Trademarks Act 1995, which allows evidence of the usage of the trade concerned and of any relevant trademark, trade name or get-up legitimately used by other persons. Her evidence on the historical origins of the word ‘Spritz’ was also received as historical context.
The court excluded one paragraph of the second report. Noot’s solicitors had sent Devine 68 documents with a second letter of instruction dated 6 October 2025. In response, Devine stated she was happy to stand by the statements in her first report.
“That does not assist the Court, and Bickford’s should not be expected to trawl through those documents seeking to glean which opinion is supported by which document,” Justice O’Sullivan said.
He declined to allow Noot to address that part of the evidence “at this late stage” and ruled the statement would not be admitted.
The ruling follows an August 2026 decision in the same proceedings, in which Justice O’Sullivan dismissed Noot’s application to amend its cross-claim to plead that Bickford’s is not the owner of the Spritz trademark. Noot was ordered to pay Bickford’s costs of that application.
Noot has also cross-claimed to cancel the SPRITZ registration, according to a June 2025 Federal Court judgment in a related dispute between Bickford’s and Trink Tank, which sells non-alcoholic drinks under the Grupetto brand.
Bickford’s is represented by Piper Alderman. Noot and Barton are represented by HWLE Lawyers.
Bickford’s Australia Pty Ltd v Noot Drinks Co Pty Ltd [2026] FCA 1296
