Court irons out BOTOX infringement claim

The US District Court for the Central District of California has awarded Allergan Inc $1.5 million for the infringement of its BOTOX mark for a drug used to reduce wrinkles (Case SACV 04-36 JVS (MLGx), June 15). The court ruled that defendant Mira Life engaged in unfair competition and intentionally infringed the BOTOX trademark by marketing an anti-wrinkle cream as MiraBotex.

Upon discovering the existence of MiraBotex, Allergan demanded that Mira Life cease using the word ‘botex’ on its product, packaging and labelling. Mira Life acquiesced and entered into a negotiated settlement agreement. However, Mira Life did not pull MiraBotex from the market and Allergan filed suit, asserting various Lanham Act and state law claims.

The court had no difficulty finding against Mira Life, which defaulted. The court held that Mira Life wilfully infringed the BOTOX mark and engaged in unfair competition. The court also prohibited Mira Life from using any name confusingly similar to BOTOX and awarded Allergan $1.5 million: treble Mira Life’s profits, plus costs and attorney’s fees.

James A Bulen Jr, Piper Rudnick LLP, Washington

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