This morning I attended the oral hearing for Euro Excellence v. Kraft Foods, the Supreme Court of Canada's latest foray in copyright law in Canada. The case involves the parallel importation of Toblerone (the mountain) and Cote D'Or (the elephant) chocolates from Europe into Canada. The hearing involved some almost comical discussion about the creativity associated with the mountain and the elephant, punctuated by Justice Bastarache quizzing the lawyer for Kraft (who is trying to block the imports) whether "you really want us to believe that you want to protect an artistic work" and Justice Binnie asking whether the counsel thought that people purchase Toblerone because of the picture of a mountain on the package.
While it is notoriously difficult to predict what the court will do based on the hearing, the court virtually gave Euro Excellence a free pass, while challenging Kraft at every turn. Should the court overturn the Federal Court of Appeal and rule for Euro Excellence, there are two points worth keeping an eye on. First, Justice Binnie noted that this case felt like an attempt to do through copyright what Kraft is unable to do through trademark law. The court has been quick to dismiss attempts to substitute one form of IP right for another (consider the Mega Blocks case where the court rejected an attempt to use trademark law after a patent had expired) and might well do the same here.
Second, the court might wade into the doctrine of copyright misuse. The issue was raised by Euro Excellence, citing U.S. jurisprudence to support the view that the use of copyright in the case should be viewed as an abuse of process. The argument appeared to gain some traction with court, with Justice Rothstein asking Kraft's lawyer for a response. After avoiding the question, he was pressed by the Chief Justice and he then proceeded to argue that abuse of copyright process would only occur in Canada in the case of criminal conspiracy. That would represent an awfully high standard. I think there is some hope that the court will articulate a copyright misuse doctrine that is consistent with its previously articulated views on a balanced copyright approach and the dangers of over-protection. I argued for copyright misuse in my contribution to the In the Public Interest book and think that the doctine would be enormously helpful in establishing disincentives against abusive copyright lawsuits.
This case may been under the radar screen of some copyright watchers, but it could literally turn into the elephant in the copyright room.