A COMPANY whose Irish operation manufactures the worldwide supply of Botox, used widely as an anti-wrinkle agent, has won its High Court claim that a Dublin firm has infringed its trademark by using a similar name in one of its cosmetic products.
Mr Justice Brian McGovern yesterday upheld claims by Allergan Inc, California and Delaware, USA, and Allergan Pharmaceuticals Ireland Ltd, Westport, Co Mayo – which own the trademark name Botox – that use of the word Botoina by a rival infringed their registered trademarks. He adjourned for two weeks the question of damages. He was giving his reserved judgment on proceedings brought by Allergan in the High Court’s big business division, the Commercial Court, against Ocean Healthcare of Convent Road, Blackrock, the distributors of Botoina – one of a number of cosmetics produced by Swiss-registered firm Labo.
Yesterday, Mr Justice McGovern rejected Ocean’s claim that Botox is a weak or generic mark, and he found Botoina was seeking to “piggy back” on the goodwill of the Botox name. The judge was satisfied that both products were marketed to the same consumers and would be sought by people seeking to “eliminate or ameliorate the effect of wrinkles or lines on the face”.
Botoina sought to capture the same market and the publicity and manual produced for pharmacies selling Botoina showed the defendants were “trying to create an interface” between the two products which would be somewhat blurred, Mr Justice McGovern held.
The entire way Botoina was marketed, as an anti-wrinkle product, in a glass vial and with the syringe type applicator, was “calculated to cause confusion”, he said.