Publication
Mission impossible? Teresa Ribera’s mission letter and the future of EU merger review
Executive Vice President Vestager’s momentous tenure as Commissioner responsible for EU competition policy is nearing its end.
Australia | Publication | April 2023
Earlier this month, the High Court of Australia ultimately rejected trade mark infringement and misleading/deceptive conduct claims by Allergan (owner of the injectable BOTOX®) against Self Care’s anti-wrinkle skincare products PROTOX and INHIBOX (marketed under the slogan ‘instant Botox® alternative’). The case has been running for 6 years.
Allergan relied on the overwhelming reputation of its brand BOTOX. It argued that PROTOX was a deceptively similar trade mark and that use of the slogan (‘instant Botox® alternative’) constituted infringing use of BOTOX.
The High Court overturned the previous decision of the Full Federal Court favourable to Allergan by ruling that:
Allergan also argued that the slogan misrepresented to consumers that the effects of skincare INHIBOX were not only comparable to those of BOTOX but would also last for a similar period. The High Court disagreed, concluding that the reasonable consumer would likely believe it too good to be true that the effects of a topical cream would be both instant and as long lasting as those of a pharmaceutical injection.
For brand owners, trade mark reputation has long been a double-edged sword, which either reinforced or mitigated differences between the trade marks under comparison in infringement proceedings. The High Court’s decision reinforces the value of registered trade mark rights and their power, irrespective of reputation – even a small brand will now be able to prevent a famous infringer on the basis of its trade mark registration alone rather than having to probe ephemeral issues, such as reputation in the marketplace.
Otherwise, reputation remains a relevant consideration in passing off suits, actions for misleading/deceptive conduct under the Australian Consumer Law and trade mark oppositions. These actions are all still available to be deployed by brand owners in protecting their trade marks.
Publication
Executive Vice President Vestager’s momentous tenure as Commissioner responsible for EU competition policy is nearing its end.
Publication
On 10 October 2024, the UK government published its long awaited response (the Response) to its January 2024 consultation on “Designing a policy framework to enable investment in long duration electricity storage” (the Consultation).
Publication
Miranda Cole, Julien Haverals and Emma Clarke of our Brussels/ London offices are the authors of a chapter on procedural issues in merger control that has been published in the third edition of the Global Competition Review’s The Guide to Life Sciences. This covers a number of significant procedural developments that have affected merger review of life sciences transactions.
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