Supreme Court of Canada: selling grey goods is not necessarily copyright infringement - Decision rendered today in Euro-Excellence v. Kraft

    OTTAWA, July 26 /CNW Telbec/ - 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.

    About Ogilvy Renault: 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. ogilvyrenault.com

For further information: or to arrange an interview with our experts:  
Caroline Emond, Senior Advisor, Media Relations, (514) 847-4723,
cemond@ogilvyrenault.com; Peter Zvanitajs, Senior Advisor, Media Relations,
(416) 216-1871, pzvanitajs@ogilvyrenault.com