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Supreme Court of Canada: selling grey goods is not necessarily copyright infringement. - Decision rendered today in Euro-Excellence v. Kraft
July 26, 2007
Ottawa - Ogilvy Renault's experts explain the highly anticipated decision released today by the Supreme Court of Canada on grey goods. Grey market goods are genuine goods (and therefore cannot be stopped as counterfeit goods) but their sale in Canada can undercut a Canadian exclusive distributor's rights. This morning, the Supreme Court of Canada ruled on whether a Canadian exclusive distributor can invoke copyright law against grey goods in Canada. In a divided decision (7 judges in favour, 2 against), the Supreme Court has judged in favour of Euro-Excellence, overturning the Federal Court of Appeal and the Federal Court decisions. The main point of the Supreme Court's decision is that, in this case, Kraft Canada Inc. could not succeed in its claim because it was not the owner of the copyrights in issue. An exclusive licence had been given to Kraft Canada Inc. but the owners of the copyrights in issue were Kraft Foods Belgium S.A. and Kraft Foods Schweiz. The result could have been different had Kraft Canada Inc. been assigned the copyrights or if the copyright had not been considered "incidental" to the product. The judges who ruled in favour of Euro-Excellence were however divided on the issue as to whether there can be copyright protection in this instance in a logo appearing on packaging. The trend emanating from this decision is that the Supreme Court of Canada is cautious in balancing intellectual property rights in the context of a trade dispute. "In the end, two groups of Supreme Court judges made strange bedfellows to concur in the result but for completely different reasons. This shows the difficulty of making generalizations when it comes to parallel importation issues", says Brian W. Gray, Partner and member of Ogilvy Renault's Intellectual Property Group in Toronto. Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers, patent and trade-mark agents practising in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. The firm was recently awarded the Client Choice Award among all Canadian law firms by International Law Office.About Ogilvy Renault
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