The labelling and packaging of products sold in Canada must comply with Federal language regulations which require that certain information, such as for example the product's generic name, quantity and ingredients, appear both in French and English. These requirements apply across Canada. Where products are sold in the Province of Québec, the mandatory use of French in advertising and on labelling is the subject of more stringent provincial language laws. The Québec Charter of the French Language requires that all inscriptions on labelling, packaging, advertising and written materials accompanying products or services be in French. French inscriptions may be accompanied by a translation, but no inscription in another language may be given greater prominence than that in French. In some cases, such as outside commercial signs, the French version is required to be more prominent.
The question often arises as to how Québec's language requirements apply to trade-marks comprising words from a language other than French. Must the business translate the words of a mark in association with which it has acquired reputation and goodwill? The answer is a qualified no.
The Québec Regulation Respecting the Language of Commerce and Business provides an exception to the mandatory use of French where an inscription is a recognized trade-mark within the meaning of the Canadian Trade-marks Act. The scope of what constitutes a "recognized trade-mark" has not been considered by the courts in the context of the Québec language regulations but it is generally agreed that the exception extends to both registered and unregistered trade-marks. The exception is a compromise intended to accommodate the Federal Government's exclusive constitutional jurisdiction over trade-marks. Its application is fairly simple where the inscription clearly functions as a trade-mark. However, caution should be exercised where the trade-mark comprises elements which are descriptive of the merchandise or services, or where it contains abundant written matter which would not otherwise meet French language requirements. It is important to note that the exception does not apply where a French version of the trade-mark has been registered.
The Québec requirements regarding the language of commerce and business serve to underscore the need to identify trade-marks as such when using them. The proper registration of a trade-mark with the Federal Government and appropriate trade-mark notices such as ® (Registered), ™(Trade-Mark), MC (Marque de commerce) and MD (Marque déposée) are important steps to having it recognized. For further information on this issue, contact your Gowlings professional.
The contents of this publication are intended for informational purposes only and should not be construed as legal advice or legal opinion, which can be rendered properly only when related to specific facts.
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