Michael Geist

The Supreme Court of Canada released its decision in the Euro-Excellence v. Kraft Foods case this morning, overturning the lower court decisions to find that the Copyright Act could not be used to block the parallel importation of Toblerone and Cote D'Or chocolates from Europe into Canada (I attended the SCC hearing and commented here).  Kraft Canada tried to use copyright law to block the imports, arguing that while the chocolates were legit, the inclusion of the image of the mountain on the Toblerone bar involved an infringement of copyright. 

The decision will take some time to unpack as, unusually for this court, it includes written reasons from four justices.  In a nutshell, seven members of the court (Abella and McLachlin dissented) ruled that the Copyright Act could not be used to block the parallel imports for two different reasons.  This represents an important finding as the court took a clear stand against the claim by Kraft Canada that it could use copyright to block the parallel imports.  In doing so, one block of the court limits its decision to statutory interpretation of the Copyright Act, while a second block establishes a new copyright doctrine that suggests that the Copyright Act only protects "legitimate economic interests."  In reading the decision, there is the sense that the court was uncomfortable with the use of copyright here, yet split on whether to adopt a conservative approach that relies solely on the text of the Act or to more aggressively interpret the Act to include the legitimate economic interest doctrine. 

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