IP Osgoode posts on University of Toronto law professor Abraham Drassinower’s contribution to From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda his article The Art of Selling Chocolate: Remarks on Copyright’s Domain. The article features an exhaustive analysis of Justice Michel Bastrache’s opinion in the Euro-Excellence […]
Post Tagged with: "euro excellence"
Euro-Excellence, which successfully battled Kraft at the Supreme Court of Canada over the parallel importation of chocolate into Canada, has caved to round two of the dispute and settled the matter. While the Supreme Court ruled in 2007 that the Copyright Act could not be used to block the chocolate […]
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.
The Supreme Court of Canada has just announced that it will release its decision in Euro-Excellence v. Kraft Canada on Thursday. The case raises some interesting copyright issues including the prospect of explicitly incorporating the copyright misuse doctrine into Canadian law.
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.