Kraft v. Euro -Excellence #2 Settled

The sequel involving the same parties to the 2007 Kraft v. Euro-Excellence case decided in the Supreme Court of Canada has been settled, according to a press release from Kraft, which describes this as an “important copyright case.” The press release says that “The Judgment is important as it supports the rights of owners of copyright in Canada to stop distributors from selling products without the consent of the owner of copyright in the product packaging.”

This, of course, is not correct. A consent judgment, which this was, reflects a settlement between the particular parties involved, which is usually made on a business decision basis. Such a judgment clearly affects those parties but does not have a legally binding precedential effect on the rest of the world. This particular litigation never really got off the ground and was at a very preliminary stage.

Kraft’s current theory following the 2007 Supreme Court decision is that calling a piece of paper an “assignment” rather than an “exclusive license” will enable the blocking of the parallel importation of chocolate bars and other non-copyrightable products based upon copyright in some element of the packaging or labelling. However, this strategy has not resulted in any reasoned decision blocking parallel imports to date in Canada.

In fact, any party now being sued for copyright infringement in respect of the parallel importation of legitimate goods based upon an “assignment” strategy involving an element of packaging or labelling should know that there are arguable defences available based upon such doctrines as copyright misuse, as explicitly mentioned and left open by the Supreme Court in its 2007 decision.

It is also quite possible, where appropriate, to convert any summary “application” brought by a plaintiff in these circumstances into a full-fledged “action” in order to ensure that all viable defences and counterclaims can be asserted.

My detailed comment on the 2007 Supreme Court decision can be found here. As I said in the conclusion of that comment:

Moreover, if lower courts are somehow persuaded to come to a different overall result than the one reached by the SCC, one can certainly expect pressure for an immediate amendment to restore the status quo ante of free trade and competition in the Canadian marketplace, unimpeded by assertions of copyright in mere elements of packaging material.

HK

Vaver Live today on Euro Excellence v. Kraft

Tune in for a webcast at 1:00 PM today, Wednesday October 24, 2007 for Prof. David Vaver, formerly from Osgoode Hall Law School and now at Oxford, who will lecture on the SCC’s Kraft’s decision:

Osgoode advises that:

Professor Vaver’s lecture will assess how the Supreme Court is interpreting Canada’s intellectual property laws and how its decisions may affect legislative policy. Among the cases considered will be the Euro-Excellence v. Kraft Canada (2007), where an attempt to use the copyright law to block parallel imports of chocolate bars into Canada was narrowly repelled. The decision, involving four widely divergent opinions, recalls Milton’s lines from Paradise Lost: “Chaos Umpire sits, And by decision more imbroiles the fray By which he Reigns: next him high Arbiter Chance governs all.”

Dr Giuseppina D'Agostino advises that:

By popular demand Osgoode's James Lewtas lecture featuring University of Oxford Professor David Vaver will be webcast live starting at 1:00PM Eastern Time on Oct 24 in Windows Media format.

I am advised that the link to the webcast should be available on the Osgoode Hall Law School homepage and that the event should also be archived online on the Osgoode Conferences and Seminars page.

I must confess that I have a particular interest here. On behalf of my client, the Retail Council of Canada, I presented the arguments at the Supreme Court of Canada that prevailed in this case. Here’s my early summary of the outcome.

With David's well deserved reputation as a renowned scholar, author and teacher of copyright law, his take on this will doubtless be both very interesting and very important.

I truly have no idea of what he will say, but I’m really looking forward to hearing it. And I'm so pleased that I and doubtless others persuaded Osgoode (my alma mater) to do this "live." Thanks, Pina!

HK