Background
Bickford’s owns the Australian registered trade mark SPRITZ for non-alcoholic soft drinks. It is in a dispute with Noot Drinks over Noot’s alleged use of the signs “NEGRONI SPRITZ” and “LIMONCELLO SPRITZ.” Among the issues in the substantive proceeding is whether Noot used those signs as trade marks and, if so, whether they are deceptively similar to Bickford’s mark.
Noot sought to rely on two reports by Cara Devine, an experienced bartender, venue manager and owner, drinks consultant, author and industry contributor. Bickford’s objected, arguing that the reports were inadmissible expert opinion evidence, irrelevant, and improperly based on Ms Devine’s subjective observations and materials she had considered.
The Court’s Holding
Justice O’Sullivan overruled Bickford’s objection to both reports, except for paragraph 6 of Ms Devine’s supplementary report dated 9 October 2025. The Court held that Ms Devine had relevant specialised knowledge derived from her extensive experience in alcoholic and non-alcoholic drinks, and that her reports sufficiently disclosed her opinions and their foundation to permit the Court and Bickford’s to assess and challenge them.
The Court distinguished admissibility from weight. Although the reports were not presented in the style expected of expert accountants or engineers, they adequately showed opinions based on Ms Devine’s experience applied to known or assumed facts. Evidence of trade usage and relevant marks, names or get-up was admissible under s 219 of the Trade Marks Act 1995 (Cth), but that provision did not itself make otherwise inadmissible opinion evidence admissible. Paragraph 6 was excluded because it merely referred to 68 documents and said Ms Devine stood by her earlier statements without identifying which materials supported which opinions or why.
Key Takeaways
- Experience-based expertise in a particular trade can support admissible opinion evidence under s 79 of the Evidence Act 1995 (Cth).
- An expert report need not expose every aspect of its reasoning, but must enable the Court to determine that the opinion substantially rests on specialised knowledge applied to identified facts.
- Section 219 of the Trade Marks Act makes evidence of trade usage admissible, but does not displace the requirements for expert opinion evidence.
Why It Matters
The decision illustrates the practical approach Australian courts may take to expert evidence from experienced industry participants in trade mark litigation. A report’s unconventional form will not necessarily prevent admission where the witness’s expertise and the basis of the opinions are sufficiently apparent.
It also underscores the limit: an expert cannot simply adopt a large body of materials without identifying their relevance to particular opinions. That failure goes to admissibility where it prevents the opposing party and the Court from understanding the evidentiary foundation.