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Never mind the Botox ...

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

First with the news of Allergan's triumph is the Irish Examiner, which reports on yesterday's High Court ruling of Mr Justice Brian McGovern that Dublin company Ocean Healthcare infringed Allergan's BOTOX trade mark when it used BOTOINA in one of its cosmetic products. Also alleging passing off, Allergan sought injunctive relief and damages.

Ocean, who obtained their products from the Swiss company Labo, denied liability. According to Ocean, BOTOX was a weak trade mark which had become generic. It also argued that Allergan had not objected when it registered BOTOINA in Ireland and that it was only after it was launched that the court proceedings were initiated.

Ruling in favour of Allergen, McGovern J dismissed the notion that BOTOX was a weak or generic mark; BOTOINA was leaning on the BOTOX mark in order to ?piggy-back? on its goodwill. Both parties' products were marketed at the same consumers and would be sought by people seeking to "eliminate or ameliorate the effect of wrinkles or lines on the face". Taking visual, aural and conceptual similarities between the marks, he added that Ocean was "trying to create an interface" between the two products which would be somewhat blurred. For sure, though,use of BOTOINA created a likelihood of confusion as to the origin of Ocean's goods. The trial was adjourned for two weeks in order for the parties to iron out the wrinkles of damages and injunctive relief.

Good news for trial lawyers, says the IPKat: Allergan has initiated similar cases in 75 of the 110 countries where BOTOX is sold.

Botulinum toxin here
Nicole Kidman 'bat-face' here; Botoina here

Full post as published by IPKat on June 25, 2008 (boomark / email).