Copyrighting Chocolate: Kraft Canada v. Euro Excellence

Intellectual Property Journal, Vol. 20, No. 3, 2007

30 Pages Posted: 6 Aug 2008 Last revised: 26 Sep 2010

See all articles by Robert Tomkowicz

Robert Tomkowicz

Vancouver, British Columbia, Canada

Date Written: December 15, 2006

Abstract

Crowding of intellectual components in one tangible object can lead to what is sometimes referred to as the overlap of the IP rights. And when this happens, IP rights' holders are often tempted to invoke rights under several segments of the IP system, either concurrently or subsequently, to expend their monopoly and maximize profits. The practice of using one segment of the IP system to expand rights granted under another has not yet been recognized by Canadian courts as the easiest method to improve balance sheets of many corporations at the expanse of individual users and the public. It is somewhat surprising, considering the growing importance of the IP as a corporate asset and source of revenue. This reality is reflected in the number of cases involving allegations of IP rights' infringements, copyrights' in particular. Even more surprisingly, considerable jurisprudence on IP overlaps in the U.S., which could assist Canadian courts when such practices are identified, is usually ignored. It is probably the ripe time to formulate a consistent approach to the challenge of using IP rights' overlaps in Canada. It will inevitably produce an improved and more integrated IP system. This paper looks at the practice of using copyright to expand trade-mark monopoly. It does so through the prism of a recent Canadian case Kraft Canada v. Euro Excellence. In the first part, it presents the purpose of the IP system, with emphasis on copyrights and trade-marks. The second part discusses use of trade-marks in Canada to prevent parallel importation. The third part introduces the Kraft case and points to public policy argument raised there. Next part assesses the overlaps of trade-mark and copyright laws, pointing to potential problems. The final part offers some suggestions to address the problem.

Keywords: IP, copyright, trade-marks, overlap

JEL Classification: O34

Suggested Citation

Tomkowicz, Robert, Copyrighting Chocolate: Kraft Canada v. Euro Excellence (December 15, 2006). Intellectual Property Journal, Vol. 20, No. 3, 2007, Available at SSRN: https://ssrn.com/abstract=1196542

Robert Tomkowicz (Contact Author)

Vancouver, British Columbia, Canada

Vancouver, British Columbia
Canada

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