High Court Wrinkles BOTOX Trade Mark

In Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, Allergan failed in its attempt to prevent use of the phrase "instant Botox® alternative", and use of the trade mark PROTOX.

What was the Issue?

• Self Care used the phrase "instant Botox® alternative" on its packaging and its website as a trade mark (examples below)
  
• Self Care also used the trade mark PROTOX (example below)
  
• Allergan objected to the unauthorised use of its BOTOX trade mark and to use of the PROTOX trade mark

What did Allergan claim?

• That use of "instant Botox® alternative" infringed its BOTOX trade mark registrations.
• That BOTOX and PROTOX are deceptively similar, meaning that use of PROTOX infringed its BOTOX trade mark registrations.