The Charter of the French Language (the “Charter”) and the Regulations adopted under the Charter provide for the requirement that French be the language of commerce and business in the province of Quebec. As a general rule, all inscriptions on public signage, products (on a product itself, its packaging or on a document accompanying the product, such as manuals and warranty certificates) and commercial documents (such as catalogues, brochures, folders, commercial directories, menus and wine lists, websites) must be in French. However, French inscriptions may be accompanied with an English translation but it must not be given greater prominence than the French inscriptions. In the case of commercial documents, the French version can be accompanied with an English version that is of lesser or equal prominence than the French version. If the French and English versions of the documents are separate documents, the French version must be available under no less favourable conditions of accessibility and quality than the English version. As for public signage, French inscriptions must be “markedly predominant” than their English translations. A specific regulation exists for guidance as to the meaning of “markedly predominant”, which requires the French text to be given a “much greater visual impact” than the text in any other language.
There are several exceptions to the above-mentioned general rule, one of which is the right to use a non-French trade mark absent of any French translation, if it is a recognized trade mark within the meaning of the Trade-marks Act and if no French version of the mark has been registered. The term “recognized” is not a defined term within the Trade-marks Act but it has been interpreted by Quebec courts to include both registered and unregistered trademarks. A registered trade mark would fall within the purview of the Trade-marks Act. With respect what would constitute an “recognized” unregistered trade mark, the overall distinctiveness of the mark and the length of time that the mark has been used may be some of the factors that would play a role in the determination of whether it is a trade mark that would be recognized (i.e. afforded protection) within the scheme of the Trade-marks Act.
However, the Office québécois de la langue française (the “Office”), the Quebec government’s body in charge of the protection of French language in Quebec, currently only accepts a registered trade mark in support of the trade mark exception in its assessment of complaints of non-compliance of the Charter and its regulations, since the Office is not in the position to assess unregistered marks.
It is therefore still recommended to consider filing an application with the Canadian Intellectual Property Office to secure registration, if an English unregistered trade mark will be used in the province of Quebec and subject to claim of the trade mark exception. Conducting trade mark clearance searches and seeking advice as to the registrability of a trade mark are also recommended prior to filing an application for registration.
Product packaging and labeling language requirements are also governed in Canada by federal legislation applicable in the province of Quebec that includes bilingual inscription requirements. Compliance at both the federal and provincial levels of government must be ensured. For example, regulations to the Consumer Packaging and Labeling Act require all mandatory information, other than the dealer identification, to appear in both English and French. Therefore, the name of the product, net quantity, and, if applicable, the words “imported by/for” must be in bilingual format. However, the dealer identification may appear in English or French.
With respect to public signage, use of a non-French trade mark without registration should be avoided to the extent possible. It is here that the Office will likely exercise less tolerance in accepting the recognized mark exception. The Office is also currently taking the position that if a trade mark is used on public signage as a business or firm name (in the general sense conveyed in the Charter) and the trade mark is in a language other than French, it must be accompanied by a generic term in French that describes the business. There is no definition of “firm names” in the Charter, however, the commentaries interpret firm name to include legal names (name of a corporation in the articles of incorporation), or to any other name a company or a business in Quebec may use to make itself known to the public. This position is currently being challenged in the Quebec courts by six multi-national retailers.
Companies who conduct business activity in Quebec must file a declaration with the Quebec’s Enterprise Register. Section 63 of the Charter also states that a name of an enterprise or a firm/business name must be in French. Any other names used in Quebec in conducting business, which may correspond to a trade mark, must also be declared with the Enterprise Register.
The Charter also provides penalty provisions. Section 205 states that every person who contravenes a provision of the Charter or the regulation commits an offence and is liable for each offence, to a fine of $1,500 to $20,000 in the case of a legal entity; and doubled for any subsequent offence.