A number of English companies operating businesses in and
around the Montreal area were charged with having violated
provisions of the Charter of the French Language (the
"Charter") that prohibit or restrict the use of a
language other than French in the Province of Quebec on public
signs, posters, advertising, brochures and packaging.
Specifically, the allegations included:
Commercial signs written in a language other than French,
signs that failed to respect the requirement of marked
predominance of the French language,
inscriptions on products, containers, wrappings or documents
supplied with the product that were not in French, and
promoting goods and services on the internet exclusively in
All of the Defendants but one were found guilty of
violations of the French Charter. Two of the issues
considered by the Court were of particular note.
1.The interpretation of what is meant by the requirement that
French be "markedly predominant"
Some of the Defendants argued that posting French language on a
sign before the English version was enough to meet the criteria
under s.58 of the Charter which requires that public signs can be
in French and another language provided the French language is
markedly predominant. The Court however
disagreed and indicated that marked predominance refers to the
greater visual impact of the French language when compared to the
other language included on a sign and specifically stated
"...simple priority in the placement of the French language
does not clearly establish the visual predominance of the French
language. When it comes to the language of the signs and the
marked predominance of the French language, size does
2. The exemption to the French translation requirement for
a "recognized trademark"
Two of the Defendants also argued that the trademark exemption
to s.58 of the Charter applied. The exemption provides that a
recognized trademark can appear exclusively in a language other
than French (unless a French version has been registered) on public
signs, posters and commercial advertising. Neither of the
Defendants' alleged trademarks were registered and the issue
therefore was whether the unregistered slogans used by the
Defendants qualified as recognized trademarks. With respect
to the first Defendant Mundi Canada Inc., the Court held that use
of the phrase "Italian fancy leather goods" was nothing
more than a generic description of the products sold by the company
and as the phrase was not used to promote a product or service in a
distinctive manner, no trademark exemption was established.
However, with respect to the second Defendant Meldrum the
Mover's use of the phrase "Everything inside packed with
pride" on a truck parked on the Defendant's premises the
Court noted that "the phrase rings like a slogan; it even
rhymes" and, combined with the evidence presented, the Court
was satisfied that the phrase qualified as a common law trademark
exemption. Of note, the truck at issue was kept on the
Defendant's grounds only as a source for spare parts, parked in
an area out of public view and it was alleged that the inspector
from the Office québécois de la langue
française had to trespass onto Meldrum the Mover's
grounds in order to view the vehicle. Based on these facts,
the Court was also of the view that in any event the Charter does
not encompass slogans posted in areas not intended for the
The case is important because it provides clarification as to
what type of display or placement of the French wording will
qualify as meeting the requirement that the French wording be
"markedly predominant" and confirms that a common law
mark that has been used in a distinctive manner qualifies for the
trademark exemption to the Charter.
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
informational only and does not constitute legal or professional
advice. To obtain such advice, please communicate with our offices
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).