Various legal instruments govern product packaging and labelling at both the federal and provincial levels. These laws and regulations meet various prerogatives, particularly regarding consumer protection and preservation of the French language. How, then, do trademark rules, which are developed at the federal level with Anglophone, Francophone and bilingual consumers in mind, fit in with the legal requirements put in place to preserve the French language in Quebec? And what about the application of Quebec's language rules to the packaging of products available to Canadians, which must satisfy federal packaging and labelling requirements?

The Federal Packaging and Labelling Regime

At the federal level, the Consumer Packaging and Labelling Act and its regulations govern the general framework for labelling on products destined for the Canadian market, and the languages in which packaging and label inscriptions must appear. However, different sets of rules apply to different types of product, for example cosmetics and food. As such, it is necessary to first determine which regulations apply to then determine which packaging and labelling elements must appear in both official languages.

Under the Consumer Packaging and Labelling Regulations, the following product information must be displayed in both languages:

  • the identity of the product, which must refer to the product by its common or generic name or by its function; and
  • its net quantity.

The name and address of the manufacturer's principal place of business may appear in either language.

To comply with these Regulations, product inscriptions must be in a font not less than 1.6 millimetres in height and be shown in a manner easily legible to the consumer under normal or customary conditions of sale.1

As for cosmetic products, the Cosmetic Regulations further specify that the following elements must appear in both English and French:

  • the list of ingredients, unless International Nomenclature Cosmetic Ingredient (INCI) names are used;
  • any technical information regarding the product type, such as combustion hazard notices; and
  • the name and address of the manufacturer's principal place of business, which, in contrast to the Packaging Regulations, must appear in both languages.

For food, the Food and Drugs Act and its regulations apply, in addition to the general provisions on packaging. All of the mandatory information specified in the regulations must appear in both languages, including the following:2

  • the name of the product;
  • the list of ingredients and allergens;
  • the fact that the food has been enriched;
  • the net quantity;
  • the nutrition facts table; and
  • storage instructions.

A number of other provisions require specific statements for certain types of food, such as alcoholic products, honey, or dairy products. Since food regulations are complex and each type of product carries specific requirements, it is recommended that you consult a legal advisor with expertise in the field about what information has to be displayed and in which languages.

The Provincial Regime for the Preservation of the French Language

In Quebec, the Charter of the French Language (the "Charter") provides that any writing on a product, container, package or object accompanying the product must be in French. The French text may be accompanied by a translation in another language, but the text in that language must not be more prominent than the French text. Both languages may nonetheless be equally prominent. In addition, all documents accompanying the product, such as directions for use and warranty certificates, must be minimally provided in French and may be accompanied by a version in another language.3 There are certain exceptions to the requirement for French-language markings, the main one being that a non-French "recognized" trademark within the meaning of the Trade Marks Act (the "Act") may appear exclusively on the product unless a French version of the trademark has been registered in Canada.4

With respect to public signage and commercial advertising, the general rule introduced by the Charter is that a sign or advertisement may be in both French and another language, provided that the French is markedly predominant.5 Where a sign or advertisement contains a "recognized" trademark within the meaning of the Act in a language other than French, the trademark may appear exclusively on the sign or advertisement.6 However, a sign that is visible from the outside and displays a trademark must have a "sufficient presence of French," in the form of, for example, a description of the products or services offered.7

Bill 96, recently introduced in Québec's National Assembly, proposes certain amendments to the Charter, particularly with respect to public signs and commercial advertising. For more details, see our companion bulletin which deals specifically with Bill 96.

Convergence Between Packaging and Labelling Requirements and Trademarks

The federal trademark regime, the federal consumer packaging regime, and Quebec's French-language regime all have different legal objectives. The trademark regime protects a merchant's goodwill as well as consumers, by providing a reliable indication of the origin of goods and services, so that consumers may distinguish the source of a product or service from that of competitors. The federal packaging regime is also intended to protect consumers, whether Anglophone, Francophone, or bilingual. Thus, this latter regime also serves to protect Canada's two official languages. The primary purpose of Quebec's language laws, for their part, is to preserve the French language.

As explained above, a "recognized" trademark in a language other than French may appear on product packaging or labels without any French translation, provided that a French version has not been registered in Canada.8If a French version has been registered, it is this version that must appear on the product's packaging or label (the non-French version may also be displayed, but it must not be more prominent than the French version).

It is worth noting that the expression "recognized trademark" has been interpreted to mean both registered and unregistered trademarks, the latter of which include applied for trademarks and common law marks.9 However, trademark registration is nonetheless recommended so as to avoid any potential ambiguity as to the mark's status. If a complaint is filed with the Office québécois de la langue française and you intend to base your argument on an unregistered trademark, the burden will be on you to prove its use as a trademark.

Moreover, it may occur that a product's identity, as required by the federal Consumer Packaging and Labelling Act, is composed in whole or in part of a trademark. Such a situation is in theory unlikely, since a trademark should not clearly describe the nature of the product associated with it; however, it may be suggestive of the nature of the product. As such, a "suggestive" trademark could also serve as the product's identity. The question then arises as to whether such a marking, which would serve as both the product's identity and a trademark, might also benefit from the Charter's "recognized trademark" exception. The answer is no. While the trademark itself may be in English only, such is not the case for the product's identity within the meaning of the Consumer Packaging and Labelling Act. That identity must be displayed in both official languages, since it enables the consumer to recognize the nature or function of the product in question. In such a case, it is essential to comply with federal packaging ad labelling requirements, by indicating the product's identity in both official languages, even if the product's identity contains all or part of a "recognized" trademark.

Furthermore, various types of markings - a logo, a slogan or even a product label - may be registered as trademarks, depending on a number of criteria set out in the Act. However, if you are considering applying to register your trademark with the product label design as the mark, labelling requirements, such as the net quantity, should not be included in the mark as these could distort the trademark. Whereas these markings must appear on the product label, they should not be part of the trademark itself.

If you or your company are considering creating new labelling or packaging for your products, it is important to take the necessary precautions to make sure that it meets the requirements of both the federal packaging and labelling regime and the Charter so as to avoid hefty fines, which may go up to $10,000 under federal legislation and $20,000 under Québec legislation. When in doubt, be sure to seek the advice of experienced trademark/labelling counsel to determine what options are available to you or your company.

Special thank you to Florence Rodrigue for her contribution to this article.

Footnotes

1. Consumer Packaging and Labelling Regulations, s. 14.

2. Food and Drug Regulations, section B.01.012 (2).

3. Charter of the French Language, s. 51.

4. Regulation respecting the language of commerce and business, s. 7(4).

5. Charter of the French Language, s. 58.

6. Regulation respecting the language of commerce and business, s. 25(4).

7. Regulation respecting the language of commerce and business, s. 25.1.

8. Regulation respecting the language of commerce and business, s. 7(4).

9. Quebec (PG) v. 156158 Canada Inc. (Boulangerie Maxie's), 2015 QCCA 354.

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.