Advertising in the province of Quebec — whether on commercial signage, in print media, on the Internet or via the tiny text on a product's packaging — adheres to a unique set of language rules of which businesses wishing to capitalize on the country's second most populous province must be mindful.
A Few Rules to Remember
The language of business, commerce and advertising in Quebec is regulated by the Charter of the French Language (the Charter) and its Regulation respecting the language of business and commerce (the regulation), and enforced by the Office québécois de la langue française (OQLF). The Charter, which dates back to the 1970s, provides several basic French language requirements with respect to product packaging and labelling, commercial publications and advertising.
For example, the Charter requires all packaging and labelling in Quebec, including text on shipping containers, to be in French, or in French and another language, provided that the French text is at least equally prominent to text in the other language. This is the "equal prominence rule" which extends to product inserts, brochures and other materials accompanying a product, i.e., instruction manuals, warranty certificates and promotional coupons printed on a product's packaging or supplied with the product at the time of purchase. Text and inscriptions on the product itself, such as product identity information or directions for use must also be in French, or comply with the equal prominence rule. Similarly, all catalogues, brochures, commercial directories and other publications of the same nature must be in French or comply with the equal prominence rule.
All commercial advertising, particularly on public signs, posters and point-of-sale materials, is subject to the Charter and therefore must be either exclusively in French or bilingual, provided the French text is "markedly predominant." The markedly predominant concept is the object of its own regulation under the Charter and generally requires that "text in French has a much greater visual impact than the text in the other language." For example, the markedly predominant rule dictates that French text must be at least twice as large as text in the other language, and occupy an area at least twice as large on posters and point-of-sale advertising.
Exceptions of Interest
Among certain exceptions to these rules, and perhaps the most important is the "recognized" trade-marks exception. Recognized trade-marks for which no French version has been registered need not be translated into French. However, the courts and the OQLF have differing views as to what constitutes a "recognized" trade-mark. While the OQLF holds that a mark must be registered to be "recognized," the courts have maintained that a common law mark may be a recognized trade-mark. Text that is applied permanently to a product by means of engraving, baking, inlay, riveting or embossing need not be in French, provided the product is from outside Quebec. It must be noted, however, that a recent draft regulation proposes to restrict this exclusion by excluding the following six types of appliances from its application: stoves, microwaves, refrigerators, washing machines, dryers and dishwashers. In any event, any text concerning the safety of a product must be in French.
Moreover, catalogues, brochures and similar publications may be exclusively in a language other than French if they are to be inserted in a news publication or magazine published exclusively in that other language. The regulation further sets out exceptions to the rule for commercial advertising, making English-only advertising legal on English television and radio stations and in English newspapers and magazines.
The OQLF's New Campaign
In November 2011, the OQLF officially launched the campaign "A sign of respect of the law" (Une marque de respect de la loi). This highly publicized television and online initiative was developed to inform marketers of the OQLF's position on commercial signage in Quebec: English only trade-marks designating business names on commercial signage must now be accompanied by a French generic descriptor or expression. Although the OQLF appears to acknowledge the "recognized" trade-mark exception, it considers that if such a trade-mark is used as the name of a business, it must be in French or accompanied by a generic descriptive term in French.
This new campaign may have particular consequences on a trade-mark's legal protection. In fact, businesses endeavouring to comply with the OQLF's new requirement are well advised to consider how compliance may affect their mark.
Although there is currently some doubt as to whether the OQLF's interpretation of the Charter will withstand legal challenge, its current position on the language of business names is a reflection of a renewed concern over language issues in Quebec, particularly in the Montreal area. This heightened sensitivity has been widely reported in the province's media: even Montreal's NHL team was the object of criticism after naming an anglophone as head coach! Further, the OQLF's recent announcement that it will hire close to 70 additional personnel is evidence of increased enforcement action. Compliance with Quebec's French language requirements is no longer a purely legal issue, it is a matter of public image.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.