Allergan Incorporated and its Irish subsidiary, which own and control the Botox trade mark for a range of products in Class 5 including cosmetic treatments, were successful in their action against Ocean Healthcare for passing off and trade mark infringement through the use of the word mark Botoina in respect of a similar product.

Allergan objected that the use of the word Botoina for products that did not contain -- as Botox did -- botulinum toxin -- was itself misleading while Ocean argued that, if the Botox mark signified botulinum toxin, it was becoming generic. The High Court (Mr Justice Brian McGovern) affirmed that Botox was a strong mark that had not been afflicted by genericity; it also concluded that the choice of the name Botoina enabled Ocean to “piggy-back” on the goodwill of the Botox name. Both products were marketed at the same consumers and would be bought for the same reason. Since the marks were similar and the products were competing, the use of the word Botoina created the likelihood of confusion.

The trial was adjourned for two weeks in order to address the issues relating to relief [source: The Irish Examiner].