Partial Revocation of a Prohibition against the Use of the "BOTOINA" Brand

Facts

Allergan Inc., an American company, is active in the field of healthcare and skincare products. It distributes the pharmaceutical product BOTOX in Switzerland. Labo Cosprophar AG advertises and distributes a cosmetic line for the treatment of wrinkles under the BOTOINA brand.

Allergan filed a lawsuit with the Civil Court of Basel-City, requesting, among other things, a prohibition on the use of the BOTOINA brand and the dominant advertising of cosmetics for the treatment of wrinkles with an injection. The court issued partial interim measures in this regard.

Labo Cosprophar appealed against this order. The Federal Supreme Court lifted the prohibition on the dominant advertising with an injection, as it was formulated too vaguely. In all other respects, it dismissed the appeal.

Considerations

The Federal Supreme Court examined whether the lower court had rightly considered a violation of the Unfair Competition Act to be credible. It concluded that the lower court had not acted arbitrarily in affirming an unfair reference to the BOTOX brand and a risk of indirect confusion.

However, the Federal Supreme Court considered the prohibition, expressed in paragraph 2 of the contested order,…