High Court of Australia
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, GORDON, EDELMAN AND GLEESON JJ
SELF CARE IP HOLDINGS PTY LTD & ANOR APPELLANTS
AND
ALLERGAN AUSTRALIA PTY LTD & ANOR RESPONDENTS
Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd
[2023] HCA 8
Dates of Hearing: 13 October & 14 December 2022
Date of Judgment: 15 March 2023
S79/2022 & S80/2022
ORDER
In Matter No S79 of 2022:
1. The appeal be allowed with costs.
2. Orders 2 to 6 of the orders made by the Full Court of the Federal Court of Australia on 7 September 2021 and the declarations and orders made by the Full Court of the Federal Court of Australia on 13 October 2021 in proceeding NSD 35 of 2021 be set aside and, in their place, order that the appeal be dismissed with costs.
In Matter No S80 of 2022:
1. The appeal be allowed with costs.
2. The orders made by the Full Court of the Federal Court of Australia on 7 September 2021 in proceeding NSD 249 of 2021 be set aside and, in their place, order that the appeal be dismissed with costs.
On appeal from the Federal Court of Australia
Representation
A J L Bannon SC with A R Lang SC for the appellants in each matter (instructed by Gilbert + Tobin)
J T Gleeson SC with H P T Bevan SC and K I H Lindeman for the respondents in each matter (instructed by Griffith Hack Lawyers)
J M Beaumont SC with G R Rubagotti, appearing as amicus curiae (at the hearing on 14 December 2022)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd
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.
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