In this case, I more or less agree with Bastarache’s opinion which as Norman Siebrasse has suggested on this blog dealt with the policy issues head on.
This is one of those cases, like Kirbi, where intellectual property law was strategically deployed in a manner other than the purpose for which it was intended. Whereas in Kirbi, trademark was used in an attempt to extend a monopoly upon expiry of the patent, here copyright is used to prevent competition in what is essentially a matter of trademark law.
Trademark was not engaged in this case because the source the product (and its quality) was not misrepresented to consumers. Indeed, the value of the goods are almost exclusively based on the trademark's goodwill and the underlying quality of the product.
The only recourse for the plaintiff was copyright -protection of the expressive work on the packaging - as a means of prohibiting parallel imports. While there are economic rights of the copyright owner engaged here (which were exclusively licensed to the plaintiff) it is hard to see that this represented anything more than, at most, de minimis value. I am all for protecting the territorial market rights of intellectual property, but it just doesn’t seem that this was implicated (or at least sufficiently so) to invoke copyright protection. In other words, what is at issue here (like in Kirbi) is trademarked chocolate bars (lego blogs) and not a copyrighted expressive works (not distinguishing guises).
I would have preferred an analysis based on abuse of rights or misuse of copyright (which Bastarche avoided), which would have dispensed of copyright on the basis that the purposes of copyright protection were not properly engaged in this case. While like the "incidental" copyrighted works, this adds some uncertainty to the law (see Abella's judgement), this in my view is justified to avoid strategic extensions of monopoly protection.
Noticably absent from the case was any mention of the TRIPS Agreement, which demands that IP not act as an unreasonable restraint on trade. The result of the decision is good for international trade and for competition within the Canadian market.
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