SCC Divided On Key Issues Of Copyright Policy: Grey Marketer Prevails In End

On July 26, 2007, the Supreme Court of Canada issued an eagerly awaited decision in the case of Kraft Canada Inc. v. Euro Excellence Inc. The SCC allowed the appeal of Euro Excellence, reversing the Federal Court of Appeal judgment (2005 FCA 427), which had affirmed the trial decision (2004 FC 652) allowing Kraft Canada’s claim of secondary infringement of copyright against Euro Excellence. Four varied decisions were rendered by the Court: Rothstein J. (with Binnie and Deschamps JJ. concurring), Fish J. and Bastarache J. (with LeBel and Charron JJ. concurring) found that the grey-market activity complained of did not infringe Kraft's copyrights in the packaging; and Abella J. (with MacLachlin J. concurring) found that the copyrights existed and were infringed.