Last word on BOTOX by the High Court

The recent judgment of the High Court of Australia on 15 March 2023 in Self Care IP Holdings Pty Ltd & Anor v Allergan Australia Pty Ltd & Anor [2023] HCA 8 has resoundingly and unequivocally answered some long contested and held so-called "principles" of trade mark law. This dispute was principally concerned with use of two disputed marks "PROTOX" and "instant Botox® alternative" by Self Care, and the question of deceptive similarity and infringement under s120(1) of the Trade Marks Act 1995 (Cth) of Allergan's "BOTOX" registered trade mark.

Firstly, in referring to several lower Federal Court decisions,^{1 2} the High Court noted the relevance of the reputation of a registered trade mark in an action for trade mark infringement under s120(1) has been contentious for some years. In examining the issue, the High Court appointed Ms Beaumont SC and Ms Rubagotti as amicae curiae to contradict both Allergan and Self Care who jointly submitted that reputation