Triangular Lawyers up Triangular Trees

The decision in Euro-Excellence v Kraft has just been released; it’s a dispute over copyright in logos as a method of restraining unauthorised distribution of chocolate bars (Toblerones) in Canada. An apparent fallout over distribution led to a position where EE didn’t have a deal, Kraft issued a copyright licence to someone else for the logo, EE continued to import/sell the product, and Kraft hit the courts.

The result was that there was no violation – for (not particularly interesting) licence-related reasons. That was a 7-2 finding.

But we have a split court here – one of the most interesting elements is the question of whether it should be possible to make a copyright claim for trade law reasons! This bit is fun. Bastarache, LeBel and Charron (who were in the seven) wrote separately (via Bastarache) and critically, arguing that through a purposive interpretation of the Copyright Act, the technical breach was just that, and thus there is no infrigement for the purpose of the Act. It builds on things like the SOCAN finding re: caching (para 81) and the general comments in CCH, but is still quite an argument.

Fish added (paras 55-6, citations omitted):

I think it worth noting that the trial judge, in upholding Kraft’s claim, proceeded on the assumption that “the sole purpose of [Kraft Belgium and Kraft Schweiz] registering copyright in Canada and then assigning rights to Kraft Canada Inc. was to mount the very attack upon [Euro‑Excellence] which is currently before this Court” . For the true purpose of the Copyright Act, see Robertson v. Thomson Corp, para. 69.

Without so deciding, I express grave doubt whether the law governing the protection of intellectual property rights in Canada can be transformed in this way into an instrument of trade control not contemplated by the Copyright Act.

That makes four. However, the other five (the two dissenters, plus three from the original majority) offer no concession to the Purposive Three Plus Fish. So they would have found in favour of Kraft, were it not for the licence issues. And that is, at least in policy terms, quite scary, and it will be interesting to see how this decision and SOCAN/CCH interact. Michael Geist is wondering about the same thing. And more: from William Patry and Howard Knopf!

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