Canada: Retailers’ Challenge Of The OQLF’s Interpretation Of The Charter Of The French Language

On October 9, 2012, six retailers, BEST BUY, COSTCO, GAP, OLD NAVY, GUESS? and WAL-MART, filed a motion in the Superior Court of Québec seeking a declaratory judgement against the Office québécoise de la langue française ("OQLF") that the use of their  trademarks on signage, without a French descriptor, does not breach the Charter of the French Language (the "Charter") and its regulations.

The court challenge is the result of a campaign launched by the OQLF in 2011 that aims to require more public use of French on commercial signage. While the Charter generally requires French as the language of commerce in Québec, since 1993 the Charter's regulations provided an exception for recognized trademarks. Businesses have relied upon this exception to display signs based on English trademarks without any additional descriptive wording in French.  However, in a move that has surprised and threatens to inconvenience many businesses, the OQLF made a distinction between trademarks and business names, finding public signs to be a display of a business name rather than a trademark. As a result of this distinction, the OQLF has cited Section 27 of the Charter's Regulation respecting the language of commerce and business (the Regulation) which requires business names to include language, in French, describing the nature of the business; the OQLF has relied on this section of the Regulation as the basis for requiring a French descriptor on commercial signs.

The campaign targets all businesses, not just retailers, but these retailers have decided to seek the Court's interpretation of the Charter and its regulations, which could put an end to the debate. According to the motion, the OQLF has apparently threatened to suspend Guess? and Wal-Mart's "francization" certificates. (These certificates are issued by the OQLF to businesses that it considers to have widely adopted the use of French at all levels of the business.)

Since the motion was brought, the Québec government/OQLF has challenged the jurisdiction of the Superior Court, alleging that the Court of Québec is the proper forum. In addition, the Retail Council of Canada and the International Trademark Association have intervened as interested parties in the case. The motion is scheduled to be heard in October 2013.

Recently, the Québec's minority Parti Québécois government introduced a bill to amend the Charter. The bill seeks to modify the Charter with the goal of enhancing French language requirements with stricter rules, but does not address the OQLF's interpretation of trademarks on signage being business names requiring a French descriptor. This bill is still in its early stages before the National Assembly.

Many businesses operating in Québec also operate outside the province displaying signs that are based on English trademarks. Consider as a hypothetical example, a business that operates furniture stores in association with the trademark DAILY LIVING.

The OQLF website indicates that a commercial sign of such a business in Québec would be compliant with the Charter and the Regulation only if:
 

• the English trademark is accompanied by a French descriptor, such as:

Ameublement
DAILY LIVING
 

The OQLF has been publicly criticized in the past few months for its aggressive attacks on Montréal businesses, including one against a well-established restaurant for using the Italian word "pasta" in its menu. This complaint received so much negative media attention that the head of the OQLF subsequently had to resign. The Québec Language Minister has since indicated that the OQLF will seek to adopt a more sensible approach toward enforcing compliance with the Charter.

With the pending bill and the court action, there will certainly be important developments and changes in the months ahead.

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