Federal Court of Australia

Bickford’s Australia Pty Ltd v Noot Drinks Co Pty Ltd [2026] FCA 1296

ORDERS

THE COURT NOTES THAT:

A.    The applicant is taken to have complied with the respondents’ notice to produce dated 17 July 2026 by its provision of documents to the respondents’ lawyers on 17 August 2026 and 31 August 2026, upon its undertaking to produce any further material which becomes available.

B.    The applicant is taken to have complied with the respondents’ notice to produce dated 24 August 2026 by its provision of documents to the respondents’ lawyers on 28 August 2026, upon its undertaking to produce any further material which becomes available.

C.    It is agreed by the parties that the respondents’ witness, Cara Devine, will be made available for cross-examination at the trial on 1 October 2026, so that Ms Devine may attend the trial in person.

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 28 August 2026 is dismissed.

2.    The cross-claimant is to pay the cross-respondents’ costs of, and incidental to, the interlocutory application.

3.    The parties are granted access to the documents filed by the Registrar of Trade Marks on 15 May 2025 upon the usual undertaking to maintain the integrity of the file.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Ex tempore reasons settled from transcript

O’SULLIVAN J:

1    This is an interlocutory application filed by Noot Drinks Co Pty Ltd to amend its statement of cross-claim to plead s 58 of the Trade Marks Act 1995 (Cth) that the cross-respondent, Bickford’s Australia Pty Ltd, is not the owner of the trademark “Spritz”.

2    The application is late in the sense that the trial is listed to commence on 28 September 2026.

3    Noot, who is the cross-claimant, contends the matter is raised in the alternative to its primary case that the word “Spritz” is used as descriptive signification. Noot contends that the proposed amendments are simply the converse of its primary case.

4    Bickford’s contends that it goes further than that and that although Noot relies only on one advertisement from 1979, nonetheless, Noot do not accept that there was only one use. That circumstance raises issues for Bickford’s in answering the allegation.

5    As to the reasons for the delay in bringing the application to amend, although there is some, albeit slightly conflicting, explanations of the reasons why this proposed amendment is raised one month prior to trial, Ms Cunliffe, who appears for Noot, quite properly concedes that the point could have been raised earlier.

6    In all the circumstances, I am not satisfied that Bickford’s will not be prejudiced in its preparation for trial if the amendment is allowed. I am also not satisfied that the explanation proffered by Noot is sufficient to warrant the exercise of the Court’s discretion to allow the amendment.

7    Under those circumstances, Noot’s interlocutory application for leave to amend its cross-claim is refused.

Associate:

Dated:    1 September 2026