Facts
Allergan Inc., an American pharmaceutical company, has registered various brands containing the element BOTOX. Labo Cosprophar AG distributes a cosmetic line for the relaxation of expression lines under the brand BOTOINA. Allergan filed a lawsuit with the Civil Court of Basel-Stadt and requested a prohibition for Labo Cosprophar to use the sign BOTOINA. The court issued a provisional measure, prohibiting Labo Cosprophar, among other things, from using the sign BOTOINA to label cosmetics. Labo Cosprophar appealed against this measure.Considerations
The Federal Supreme Court revoked the measure, as the reasoning of the President of the Civil Court did not meet the constitutional requirements for the justification of the decision. The President had indeed found that there was a risk of indirect confusion between the BOTOINA and BOTOX marks, but had not specified which trademark rights of Allergan Inc. were allegedly infringed under which legal provisions. Nor had she justified the risk of confusion with regard to the goods for which the…