Comments on the judgment: Euro-Excellence Inc. v. Kraft Canada Inc. in Supreme Court

On July 26, 2007, in Euro-Excellence Inc. v. Kraft Canada Inc., the Supreme Court of Canada ruled that the holder of an exclusive copyright licence in the logos displayed on the packaging of chocolate bars could not invoke the Copyright Act to prevent parallel importation and distribution of the goods bearing those logos. The ruling is very complex, given the fact that four of the judges wrote widely divergent opinions on the issue. The case exposes two problems affecting the Canadian intellectual property regime. The Copyright Act is a highly complicated piece of legislation which contains obscure concepts such as "the grant of an interest in the copyright by licence." Given the inherent vagueness of the legal provisions, it is not surprising that the judges have reached very diverse conclusions regarding the right of action of the exclusive licensee. The case also brings to light an aspect of the "Tragedy of the Anticommons" which occurs when too many owners hold exclusive rights. When the various forms of intellectual property overlap and simultaneously protect different aspects of the same product, one set of rules for one form of protection may frustrate the legislative policy developed for another intellectual property right. For this reason, a better understanding of the consequences of multiple intellectual property protection and a more coherent drafting of the Canadian intellectual property laws are essential.