Unsettling Comments from the Ontario Courts re the Settled Law of Trademarks and Parallel Importation

The Ontario courts have made some unsettling comments suggesting that the Canadian trademarks law is “unsettled” on the issue of parallel imports or grey marketing. Ironically, like the leading Canadian case on parallel imports discussed below, this also appears to be a case about chocolate bars. The comments were made in the context of an attempt by the parallel importers to defend against the enforcement of March 2006 settlement agreements on the basis that the settlement agreements were in restraint of trade and, therefore, void.

In  Mars Canada Inc. v Bemco Cash & Carry Inc. 2016 ONSC 7201 (CanLII), Justice F. L. Meyers of the Ontario Superior Court stated that:

[8] …. The law is unsettled as to whether a Canadian trade-mark holder can prevent third parties from selling products bearing the Canadian company’s trade-marks which are legitimate goods sourced from a foreign parent or affiliate of the Canadian trademark holder. …

The motions judge goes on to state:

[10] The parties argued at some length about the current state of the law concerning grey marketing in Canada and whether, in particular, a Canadian trade-mark holder is entitled to enforce its trade-marks to prevent sales in Canada by third parties of genuine product purchased from the trade-mark holder’s foreign parent company. I have not found it necessary to resolve that issue as part of the resolution of the motion before the court.

The Ontario Court of Appeal recently repeated this comment in an appeal of the foregoing decision in Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239:

[4]          …The law is unsettled as to whether a Canadian trademark holder can prevent this activity.

With respect, there is nothing that is “unsettled” about this question. Nor was anything unsettled even back in March 2006 (when the settlement agreements were entered into) about whether Canadian trademark law can be used to “thwart” parallel imports, which are by definition legitimate products put on the market by a trademark owner in another country. The answer was and is clearly “no” – except perhaps in very rare factual situations where the imported product may be of a materially different character or quality than the Canadian product and consumers get to buy a very different product from that which they expected. Usually, these grey market cases involve identical products – even from the very same ultimate source – that were acquired outside of the “official” or “authorized” channels of trade. While such parallel trade might displease the Canadian trademark owners or exclusive licensee or distributor who wishes to lessen competition and raise prices in the Canadian market, trademark law does not give them any such power.

The well-known 2007 Supreme Court of Canada decision in  Euro-Excellence Inc. v. Kraft Canada Inc., [2007] 3 SCR 20, involved the parallel importation of Toblerone and Côte d’Or chocolate bars concerning which Kraft sought unsuccessfully to “thwart” parallel importation by using copyright law instead of trademarks law. Kraft was the trademark owner in that case and if it could have used trademark law, it surely would have done so. It was represented by a very sophisticated IP litigation firm.

I made the prevailing arguments in that case in the SCC on behalf of the intervener Retail Council of Canada. Kraft tried to use copyright law because it knew that trademarks law wouldn’t work and was a non-starter. In fact, Kraft’s very experienced counsel told INTA, the major American based International Trademark Association, in a June 23, 2006 letter to encourage it to intervene in the SCC, that:

In light of the limitations imposed by legal authorities on enforcement of trade-mark rights in cases of parallel importation, Section 27(2) is very important to intellectual property right holders.

Indeed, as the trial Judge, whose decision was eventually overturned, noted that, even though it was not contested that Kraft owned the trademark, it did not try to invoke trademark law in its attempt to thwart the parallel importation of its chocolate bars. Instead, it developed an interesting strategy, alleging that the importation infringed its copyright in the artwork on the chocolate bars wrappers:

 [4] Kraft has developed an interesting strategy in an effort to thwart Euro Excellence's

distribution of these chocolate bars in Canada. To better appreciate the strategy, I should first say what it has not done. If it put distribution restrictions on Euro Excellence's supplier, it has not invoked them. Nor does it rely on trade-mark protection, although it alleges, and it is not contested, that it is the owner in Canada of the trade-marks "Côte d'Or" and "Toblerone". What it has done is take Canadian licensing rights in the artworks on the chocolate bar wrappers which have been copyrighted in Canada. It does not seek to enjoin Euro Excellence from distributing Toblerone and Côte d'Or chocolate bars. Rather, it seeks to enjoin it from distributing the copyrighted artwork on the wrappers. The idea is that the cost of re-wrapping or covering over the copyrighted artwork would act as a major disincentive...(emphasis added)

Kraft Canada Inc. v. Euro Excellence Inc. (F.C.), 2004 FC 652

(highlight and emphasis added)

Here is a comment I wrote for LSUC in 2008 shortly after the decision.

Even a trademark “owner” cannot use trademarks law to stop parallel importation. There are no developments since the Kraft case of which I am aware that would suggest otherwise.  I would be very interested in hearing from any expert counsel or academic who believes otherwise. Notwithstanding some obiter dicta in the Smith & Nephew, any attempt to change ownership of Canadian trademarks in favour of a Canadian subsidiary so as to enhance the chance of a more positive outcome in a grey marketing case is fraught with risks that include the potential loss of distinctiveness of the trademark and income tax issues.

The law was also clear before the Kraft decision.  See also:

·       Consumers Distributing Co. v. Seiko, [1984] 1 S.C.R. 583

·       Coca-Cola Ltd. et al. v. Pardhan et al. (1999) 85 C.P.R. (3d) 489 Affirming 77 C.P.R. (3d) 501 (FCA)

·       Smith & Nephew Inc. v. Glen Oak Inc. et al.; Beiersdorf Ag, Necessary Party (1996) 68 C.P.R. (3d) 153.

It is worth noting that this Bemco litigation – which has a very long and voluminous record – arises from a settlement agreement entered into in March, 2006 – at the very time when leave to appeal to the Supreme Court of Canada was being sought in the Kraft case. Perhaps Bemco settled in 2006 based upon perceived uncertainty about whether copyright law could be used to “thwart” parallel importation of chocolate bars. I don’t know and can only speculate.

However, the law on trademarks and grey marketing/parallel imports seemed very clear at the time, as shown above, which is why Kraft had chosen to frame its litigation as a copyright case. I make no comment on the underlying issues concerning the Bemco settlement agreements or the ensuing litigation in which it was apparently been argued that the settlement agreements were in a “restraint of trade”.

Speaking generally, and not about this case in any way, there are potential issues regarding settlement agreements involving intellectual property that can raise serious antitrust and pubic interest issues. This has become quite obvious in “pay for delay” cases involving generic drugs, such as FTC v. Actavis that went to the US Supreme Court.

I reiterate that I make no comment on whether or not the 2006 agreements made commercial or legal sense at the time. However, they were apparently negotiated by sophisticated parties with experienced counsel. Courts are normally very reluctant to set aside such agreements, and that seems to be the conclusion reached here after much obviously expensive and complex litigation concerning which I make no comment, except for the following.

For whatever reasons, the Ontario Superior Court and now the Ontario Court of Appeal have recently stated that the law concerning trademarks and parallel imports is “unsettled”.  This is of some concern if other parties and counsel begin to believe that perfectly legal commercial activity involving grey marketing may now be illegal or even arguably so under Canadian trademarks law. The fact that the Ontario courts in this very protracted Bemco litigation seem to believe and feel the need to state that the law regarding trademarks and parallel imports is “unsettled” is in itself unsettling.

HPK

Speech From the Throne 2013 – Will We Really Get Price Parity on Consumer Goods with the USA? IP Law is a Key Issue.

Yesterday’s  Speech from the Throne (#SFT13) contained two items that will require detailed consideration of amendments or clarifications of existing Canadian intellectual property law and amendments or clarifications to the anti-counterfeiting Bill C-56 from the previous session – or whatever it is numbered if and when it is resuscitated.

#SFT13 says:

·         “Our Government will ...Take further action to end geographic price discrimination against Canadians."
·         “And our Government will take additional action to protect Canadian consumers. Canadians are tired of hidden fees. They deserve to know the real cost of paying by debit or credit card. And they should not be charged more in Canada for identical goods that sell for less in the United States.”

Achieving these goals requires dealing with some extremely complex issues that have bedevilled courts and legislatures for decades. The elephant in the room is the issue of “parallel imports” or “grey market” goods – namely perfectly legitimate and authentic products that have been legally made and put on the market outside of Canada and which can be imported into Canada at a cheaper price than that demanded by the so-called “exclusive” distributor.  These good are by no means whatsoever “counterfeit” or “pirate” in any sense.

Despite the complexity of the “parallel imports” issue in terms of copyright law, some propositions are very simple.

Truly “free” trade cannot permit the imposition of “private tariffs” in the form of IP laws that permit geographic price discrimination or market segmentation. That would allow copyright law to become an unintended “instrument of trade control”, in the words of retired Justice Fish of the Supreme Court of Canada, and a very effective and unregulated “private tariff”.

Canada has explicit provisions in its Copyright Act regime that permit and encourage just such a regime for books. The situation for goods other than books is more complicated.

In 2007, the Supreme Court of Canada in the Kraft decision allowed a victory for the importer of “parallel import” or “grey market” Toblerone chocolate bars, largely based upon arguments that I made on behalf of the Retail Council of Canada. For a number of reasons, including the complexity of the decision and the issue itself, that victory has not been fully understood, even by some those importers who might benefit from it. Here’s an analysis I did for the Law Society of Upper Canada in 2008 that’s still useful.

Here is a summary of where the law now stands:

1. The sui generis book regime in the Copyright Act works well to keep out commercial scale importation of parallel imports and my much missed “remainder” fine art books, but is ineffective to stop personal importation by travellers and by Canadians who cross-border shop from the comfort of their own home or with their smart phone via electronic commerce in very large quantities.
2. Trade-marks law is ineffective to stop parallel imports.
3. In theory, copyright on elements of packaging and labelling can be used to exclude parallel imports if the copyright is assigned to a Canadian entity that is different than the foreign entity that made the packaging.
4. However, there’s a very good chance that such an assignment will trigger one or more of the following unintended and unfortunate consequences:

• Undesirable corporate and tax law consequences
• “Loss of distinctiveness” resulting in invalidity of trade-mark registrations
• Defence and Counterclaim allegations in any vigorously fought litigation relating to sham transactions, copyright misuse, abuse, and/or various Competition Act issues. (I have raised such allegations in a test case proceeding which then fizzled and never went forward).

Thus, copyright law – other than in respect of books – is essentially a toothless tiger when it comes to excluding legitimate parallel imports. But a lot of supposedly well-informed importers don’t get that, for the reasons stated above and for other reasons, which I won’t go into here.

Therefore, clarification of the law would be useful and maybe even essential. Even experienced IP lawyers have been baffled by it for decades. It is little wonder, then, that many of their clients and even the general counsel of their clients often don’t understand it. Maybe Parliament needs to make it sufficiently clear in simple terms so that even a copyright lawyer can understand it. I look forward to helping to find the appropriate language.

In the case of books, unless we want to keep an arguably anachronistic, anomalous and clearly protectionist regime that guarantees higher prices to Canadian consumers and higher profits to Canadian “exclusive distributors” but little else in terms of benefits to Canada, it is essential that the Copyright Act be amended. Otherwise, we are certain to continue have higher book prices overall in Canada than the USA, unless the current market forces of Amazon and others put Canadian exclusive distributors and some publishers out of business, which would not be a desirable result. As for the rest of Canadian copyright law, clarifying language seems necessary for the reasons stated above.

The anti-counterfeiting Bill C-56 – which may or may not get revived in the new session – has countless confusing references that deal with parallel imports.  While the intention seems benign, the result may not be. Much more scrutiny and simplification may be required to ensure consistency with the Speech from the Throne statements.

In any event, these Speech from the Throne items cannot be achieved without considerable attention to IP details.

No doubt, the lawyers and lobbyists who would like to preserve the “private tariff” of IP to prevent real free trade and to geographically segment the Canadian market for price discrimination purposes are already hard at work to thwart the Government’s intention and to recover from their failed attempt in the Kraft case to hijack copyright law for this purpose.

And last but not least, let’s hope that the #CETA and #TPP agendas don’t derail the perfectly laudable sentiments in #SFT13.

In that connection, beware of the predictable efforts from the US Government and lobbyists representing American interests who will take their frequent posture of “do as we say, not as we do”. The US Supreme Court recently clarified in the Kirtsaeng decision that copyright law cannot be used to stop the parallel importation of goods – indeed the case was about books – largely based upon a “parade of horribles” that would result had it ruled otherwise.

As I occasionally explicitly reiterate, the views expressed on this blog are solely my own.

HPK

ACTA, “Ex Officio” Enforcement, and Parallel Imports

In the latest ACTA leaked text, it’s disappointing to see that Canada is endorsing the following proposal on “ex officio” border enforcement, This refers to the giving of power to border officials to detain suspect goods on their own initiative on the basis of suspected IP infringement, without the need of a prior court order.

Here’s the text that Canada supports (see draft Article 2.7):

[Aus/Can/Sing: 1. Each Party shall provide that its customs authorities may act upon their own initiative, to suspend the release of or detain suspected counterfeit trademark goods or suspected pirated copyright goods with respect to imported goods including suspected counterfeit trademark goods or suspected pirated copyright goods admitted to, withdrawn from, or located in free trade zones. Each Party may provide its customs authorities the same authority as the foregoing provision of this Article in respect of exported and in-transit goods that are suspected counterfeit trademark goods or suspected pirated copyright goods.]

This is very unwise for many reasons:

• A judgment call about whether a particular product is “legal” or not is very often far from clear. For example, running shoes or handbags may be made “illegally” on the same assembly lines as the “real” product “after hours” and be identical in all physical respects to the “real” product. How is the border official supposed to make the determination as to whether the goods are “legal” or not?

• In the case of parallel imports (which by definition are perfectly legitimate and neither fake nor counterfeit), the factual and legal issues are extremely complex. The US Supreme Court is about to hear a case about whether perfectly legitimate Omega watches with a small copyrighted logo engraved on the back can be imported into the US by Costco. Some of the smartest lawyers and judges in the USA are bitterly divided over how this case should turn out. In Canada, we had the Kraft case involving Toblerone chocolate bars, which resulted in a victory for the parallel importer and a complex judgment from a very divided Supreme Court of Canada (I was counsel for the Retail Council of Canada, whose intervener’s arguments prevailed in the result). There was, of course, immediate speculation about how to get around the judgment but the subsequent court cases of which I am aware have settled or, in the case in which I was involved, fizzled.

• If the best lawyers and judges have to struggle intellectually about whether perfectly legitimate parallel import goods can be legally imported, are we ready to allow border guards with no legal education, and with no prior judicial oversight to make this initial determination and potentially tie up millions of dollars worth of merchandise for great lengths of time, forcing the importer to go to court to get the goods released?

• Border officials will inevitably be “educated” and provided with information about suspect shipments by those who may have a vested interest in keeping out parallel imports and may even have an interest in causing serious inconvenience to a legitimate competitor.

• The recent wrongful seizure of generic aids medicine in the Netherlands was vivid proof that empowering border officials to make difficult IP decisions can lead to serious and even potentially fatal consequences.

• Somebody should pay for the economic losses resulting from wrongful seizures. Who will that be?

• What remedies will there be for abuse or misuse of the “ex officio” system by competitors?

• What if the result of a wrongful seizure of medicine results in harm to health and safety?

• The empowering of “ex officio” action is simply not necessary in Canada. Justice Roger Hughes of the Canadian Federal Court (who had decades of successful experience in IP enforcement before his elevation to the bench) eloquently made this point at the 2008 Fordham Conference. He said that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system, . The current system of obtaining a court order works perfectly well, he said, if only IP owners would do the necessary paper work. He regularly signs these orders when the proper documentation is presented.

• There is no reliable evidence that Canada has serious problems with the importation or transshipment of counterfeit or pirated goods. Those who claim to have “evidence” of such problems are often those who are opposed to the pro-competitive effect of perfectly legitimate parallel imports.

• As the late Sir Hugh Laddie and others have repeatedly pointed out, one of the most convenient places in the world to easily buy cheap counterfeit goods is the streets of New York. There is no such flagrant activity on Canadian streets.

Nobody supports or defends fake counterfeit or pirated goods. By definition, parallel imports are neither of these - though they are and probably forever will be viewed as controversial by those who oppose real free trade and vigorous competition.

However, one does not need to set up a system that will predictably catch lots of dolphins in the net and do little to stop shark activity, of which there is much talk and little evidence in any case.

Once again, we need to question why Canada would push for a policy that will very likely harm Canadians by fixing something that isn’t broken and has long worked perfectly well.

HK

Peeking at ACTA

KEI has unearthed some proposed ACTA documentation, with excerpts available here.

Jamie Love has a piece on it in the Huffington Post here.

Michael Geist has some analysis about where this is going here.

It looks pretty scary. And its just the tip of a potential iceberg.

For example, the proposals as quoted would criminalize some common behavior that is currently legal in Canada, even if there is " “no direct or indirect motivation of financial gain” and some of the targeted behavior might well otherwise be fair dealing.

The proposals would apparently empower a border official to provide potentially extremely confidential information to "rights holders" concerning shipments of goods that may turn out to be perfectly legitimate grey market or parallel imports. When expert IP lawyers and even the Justices of the Supreme Court of Canada can't agree on the time of day as to whether some goods are legitimate grey goods or infringing goods (e.g. Toblerone chocolate bars), how is a border guard supposed to know the difference? This is why we have Courts to deal with such matters, why we may need legislative reform, and why we most certainly wouldn't want to delegate such extraordinary powers to border officials.

A case in point is that some countries are trying to "to increase enforcement on goods in transit and blur the line between generic and counterfeit medicines at international organisations such as the Brussels-based World Customs Organization, the World Health Organization, and the Universal Postal Union" according to the reliable IP-Watch. Generic v. counterfeit? Parallel v. pirate? It's absurd to allow border officials to make these determinations.

Let's see if President Obama believes in "change" on this front both in terms of the the Americans' apparently intended substance of the agreement, and in the transparency of the negotiating process itself.

HK

Canada - EU FTA - Consultation Deadline January 20, 2009

A possible Canada - European Union (“EU”) Free Trade Agreement (“FTA”) is in the works. For whatever reason, the Government is calling it a “comprehensive economic agreement” and not an FTA. On December 20, 2008 the Canadian Government announced a consultation process.

There is an effectively hidden deadline to comment of next Tuesday, January 20, 2009.

There is a lengthy paper setting the stage for the many issues that could arise in these negotiations. There is a ten page discussion of IP issues.

The IP discussion does not explain the potential complexities and controversies that could arise. The Government of Canada expects a response from the pubic by January 20, 2009. This is somewhat astonishing, given the announcement of “consultation” only on December 20, 2009 - five days before Christmas. It is unclear why this extremely short deadline is in effect.

There is probably little awareness of the deadline. True, the notice was published in the Canada Gazette. But, as the late Gordon F. Henderson said, the best way to keep a secret in Ottawa can be to publish it in the Canada Gazette.

Considering the timing of the announcement just before the Christmas break, the focusing of attention on the forthcoming budget, and the coincidence of the one month deadline with the US Obama Inauguration events, the short deadline suggests that the Government wants this initiative to get as little attention as possible.

From an IP standpoint, there are some obvious opportunities and pitfalls depending on point of view:

1. The EU is has a life plus 70 year copyright term and is heading towards a 95 year term for sound recordings. The EU will clearly not harmonize downwards to meet Canada on this. Canada will be under great pressure to harmonize “upwards” to these lengthy terms. This would clearly be highly controversial in Canada.

2. The EU will doubtless press for quick Canadian ratification of the 1996 WIPO internet treaties, even though the EU has not ratified these treaties to date and has been claiming that such ratification is imminent for many years.

3. The EU is very aggressive on “appellations d’origine” or geographical indications. Does Canada want to take away the right of its cheese manufacturers, retailers and restaurants to sell domestic “parmesan” cheese, for example?

4. The EU has a very complex labyrinth of laws concerning parallel imports or “grey market” products. Essentially, they amount to a strong “Fortress Europe” regime to keep parallel imports out but such products are allowed to flow freely within the EU if they have been imported with the appropriate “consent”, whatever that may mean. If goods can flow freely between Canada and the EU, the EU will probably want Canada to drastically change its laws to tighten up the possibility of parallel imports into Canada because Canada could become a “back door” to Europe. This could prove costly for Canadian consumers, because IP has hitherto been essentially ineffective to block parallel imports of consumer goods into Canada, except for books. The EU is generally a very “high price” market for the types of goods that are subject to parallel trade, perhaps is large part because of its IP policies on parallel imports.

5. The EU has much more a much active antitrust policy and enforcement mind set and mechanism than Canada, and is extremely cognizant that IP rights are prone to abuse and other anticompetitive practices.

6. The EU will no doubt press for expanded ex officio border actions without Court orders that could interfere with legitimate trade and may not be necessary or desirable from a Canadian standpoint. This effort will no doubt be linked to ACTA.

7. The EU also has an unfortunate database protection regime, which has led to some bad results in terms of “extraction” of information. Whether the EU will press for this remains to be seen.

HK

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

Kraft Redux

Richard Gold has an excellent op-ed in today's Globe and Mail, unfortunately buried behind a pay wall.

Kraft is suing Euro Excellence - again. Here's part of what Richard said:

Kraft is trying to get around the Supreme Court's decision through a technical legal change in the relationship between Kraft's parent company in Europe and itself. The only reason for this change - from an exclusive licence to an outright sale of the Canadian rights in the logo - was to sue Euro-Excellence. What is particularly offensive is that the Federal Court of Appeal indicated only a few years ago that this sort of manoeuvre could well violate Canada's competition laws. When the only reason behind the transfer of copyright is to prevent
competition from other importers, the transfer is suspect.

Nonetheless, Kraft did exactly this.

While Euro-Excellence could fight the case and, given the law, win, it is unfair to make this company pay all the expenses of a second long court battle to protect Canadian consumers. And make no mistake: It is Canadian consumers who lose when international companies such as Kraft prevent the importation of perfectly legitimate, fully paid products available on the international market. Free trade was designed to bring more competition and better value to consumers. Kraft's action seeks to prevent this.

(emphasis added)

Needless to say, I agree. I successfully made very similar arguments earlier this year in Kraft #1 at the Supreme Court. Kraft, apparently, is determined to attempt to use the Copyright Act to subvert free trade with a result that would resound throughout the Canadian economy and affect countless products to which the act was never meant to apply. Seven out of nine justices clearly had no sympathy for Kraft's position. But Kraft is oblivious.

When a company is as big and rich as Kraft, it seems that it can follow the old maxim: "if at first you don't succeed, try try again."

Let's see what the Courts have to say about this the second time around.

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