Elgar Intellectual Property and Global Development series
Edited by Irene Calboli and Edward Lee
Chapter 10: "La confusion des genres": logos and packaging as copyrighted works
On July 26, 2007, the Supreme Court of Canada rendered its long-awaited judgment in the case Kraft v. Euro-Excellence. It displays themes and interrogations similar to those presented in the copyright case Omega S.A. v. Costco Wholesale Corp., notably P.E.M. on the issue of misuse. Omega was decided by the Ninth Circuit Court of Appeals, affirmed by the United States Supreme Court in 2010, and is now pending before the Court of Appeals of the Ninth Circuit after the case had been remanded to the District Court of California. Albeit obviously not subject to the exact same legislation, such grey market casesuniversally question the scope of protection of copyright law. They certainly beg the same question: to what extent can copyright law be used to control the parallel importation of consumable goods where the genuine product was first put on the market with the consent of the initial rightholder and producer of the good? In both cases referred to above, the plaintiffs were authorized distributors who claimed copyright protection in a logo affixed to the product they had manufactured or distributed. These cases hardly concern creativity, unless one considers the imagination deployed by the lawyers in devising such strategy to be a creative exploit. The objective in both instances was simply to exclude the unauthorized importer in order to create a distribution monopoly. The copyright infringement here takes a particularly unusual form: it is indirect, rather than direct, and extends to the product.
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