COPYRIGHT |
Infringement |
Kraft Canada Inc. v. Euro Excellence Inc.
T-1821-02
2004 FC 832, Harrington J.
9/6/04
5 pp.
Motion for reconsideration of order ([2004] 4 F.C.R. 410 (F.C.)) as not in accordance with reasons--Matter overlooked or accidentally omitted: directions as to method respondent may employ to render non-infringing packaging of Toblerone, Côte d'Or products to be distributed, sold in Canada--Order enjoined respondent from selling, distributing, exposing or offering for sale copies of artistic works: Toblerone bear within a mountain, Côte d'Or elephant packaging design elements--Since Copyright Act, s. 27(2) makes it infringe-ment to possess, import to Canada copyrighted works for those purposes, applicant says Judge inadvertently omitted to include possessing, importation in order--Submission rejected as Judge deliberately excluded possession, importation from order--As stated in order, "there is nothing to prevent Euro Excellence from replacing the wrappers or otherwise covering over the copyrighted material"--In discussing injunctive relief, Judge had said, "appropriate order is that the product be rendered non-infringing"--No reason to assume respondent will not abide by order--Not contrary to Copyright Act to import, possess chocolate bars in wrappers which display copyrighted artistic works--What matters is purpose for which imported, possessed--Traveller who brings home Toblerone chocolate bar, consumes it, discards wrapper not contravening Act--Judge never ordered wrappers must be rendered non-infringing in Europe--If renders wrappers non-infringing before sells, distributes, offers product for sale, will not violate Copyright Act--Parties unable to agree on how packaging to be rendered non-infringing--Respondent suggested use of partly translucent, partly opaque plastic film--Applicants' objection: retailer might remove film-- Judge failed, in open Court, to remove film using only fingernails--But 100-gram Côte d'Or "Intense" failed test in that one elephant was visible through film in certain light because embossed--It also had a chocolate brown elephant which must be covered over-- Wrappers will not infringe if bear, elephant concealed--As for embossed elephants, something must be done to render elephant's shape invisible-- Samples of each of respondent's products to be furnished to Kraft's solicitors so can make own determination as to whether wrappers non-infringing-- Copyright Act, R.S.C., 1985, c. C-42, s. 27(2) (as am. by S.C. 1997, c. 24, s. 15).