Allergan is the proprietor of the trade mark BOTOX for a nerve poison ("Botulinumtoxin") that is used to treat muscle contractions and excessive sweating. It is also subcutaneously injected to smooth wrinkles; however, for regulatory reasons, the trade mark used for the drug with this indication in both Switzerland and Austria is VISTABEL.

According to the IPKat-Blog, Allergen has sued a company that markets an anti-wrinkle cream under the trade mark BOTOINA in more than 75 countries. The cream is not injected and does not contain any Botulinumtoxin, but the advertising for it promintenly displays an "applicator" that looks suspiciously like a syringe (see right).

After the Irish High Court ruled in favour of Allergan, both the Swiss as well as the Austrian Supreme Courts have also ruled in favour of Allergan. Both courts relied not on trade mark law, but on unfair competition law to find the use of BOTOINA unfair and likely to lead to confusion. The Austrian court ruled that the display of BOTOINA together with the syringe-like applicator leads to a likelihood of confusion, not the use of BOTOINA alone. The Swiss Supreme Court upheld an injunction that prohibits the defendant from using BOTOINA with or without a "syringe"; for procedural reasons, the coginition was limited (so we do not know how the Supreme Court would have decided the case on the merits had it had full coginition). Both proceedings were preliminary injunction proceedings.

Note: the two decisions are from 2008, but I have only just now learnt of the Austrian decision. Swiss decision (German) here.