Intellectual property – Trade marks – Trade Marks Act 1995 (Cth) ("Act") – Trade mark infringement under s 120(1) of Act – Where BOTOX registered as defensive trade mark – Whether "instant Botox® alternative" used as trade mark – Whether "instant Botox® alternative" and PROTOX deceptively similar to defensive trade mark – Whether reputation relevant to deceptive similarity.
Consumer law – Misleading or deceptive conduct – False or misleading representations – Where alleged representation that wrinkle reducing effects of Inhibox would last, after treatment, for period equivalent to that achieved with treatment by Botox injection – Whether alleged representation conveyed.
Words and phrases – "badge of origin", "deceptive similarity", "defensive trade mark", "imperfect recollection", "notional buyer", "reasonable consumer", "reputation", "use as a trade mark".
Trade Marks Act 1995 (Cth), ss 10, 120, 185.
Competition and Consumer Act 2010 (Cth), Sch 2, ss 4, 18, 29.
