Kraft Canada v. Euro-Excellence: the Unbearable Lightness of the Law

Abstract:     
A professor of law, the author provides an account of his experience in litigating a case over a five-year period, from trial to the Supreme Court of Canada. The case in question, Kraft Canada v. Euro-Excellence, will likely remain within the annals of intellectual property. Rare is the opportunity for an academic to observe law in the making. Being both actor and observer, the author provides a unique perspective. He shows the unpredictability of a trial, the improbable turns it may take, its hazards, as well as the choice and surprising fate of arguments presented by the parties. These features reflect what the author terms the unbearable lightness of the law. The mechanism of the Canadian judicial system, which progressively prunes or validates specific branches of argumentation, is thus laid out.

Taking the form of a road map, the author’s commentary shows how a case is shaped, the foundations on which it is built, and how it is resolved. In particular, the author shows how the abuse of right theory became the central element of his argumentation before the Supreme Court of Canada, perhaps paving the way for the recognition of such constructions in Canadian intellectual property law. If a sequel to this commentary were to be written, it would be about the life and death of legal arguments, the inherent tension of the normative process in the adversarial system, and the role of lawyers in this process.

Number of Pages in PDF File: 51

Keywords: intellectual property, copyright, Kraft, abuse of right

JEL Classification: K21, 033, 034

Accepted Paper Series