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.
