On April 27, 2015, the Québec Court of Appeal, in an unanimous decision, confirmed that businesses can continue to use their non-French registered trademarks on storefront signs without running afoul of the rules governing the language of business in the province of Québec, specifically the Charter of the French Language ("Charter") and its Regulation respecting the language of commerce and business (the "Regulation"). This ruling confirms the decision rendered by M. Justice Yergeau of the Superior Court of Québec last year, holding that the Charter and Regulation were clear in allowing a registered trademark to be displayed in a language other than French.
As reported in our previous bulletin, the Superior Court of Québec had rejected all the arguments put forward by the Attorney General of Québec, ruling that the Charter and its Regulation were clear and that there was no doubt as to their proper application and interpretation. This decision by the Superior Court was appealed by the Attorney General on the basis that any business name appearing on a public sign in Québec, even if that business name is a registered trademark, should be first and foremost considered use of a business name and accordingly, be subject to the Charter's requirements for names, specifically, that it had to be in French, displayed in both French and another language, or combined with French generic term. The Attorney General argued that the judge had erred in its decision in the following manner:
- By restricting the definition of the word "name" in the Charterand the Regulation to that of a corporation's constitutive name;
- By concluding that a trademark used by a business in their public displays cannot be assimilated to their "name", but is used to identify its services; and
- By deeming it sufficient to apply the exception in the Regulation to settle the matter and in giving a restrictive interpretation to the section in the Regulation requiring an expression in a language other than French that appears in a business name to be accompanied by a generic term in the French language.
The Attorney General's arguments were all rejected by the Court of Appeal, which held that a trademark that has no French element can, even when used as a name or as a business name, be displayed as is without the addition of any French language. The Court of Appeal stated that nothing in the Charter (or other laws) allows it to come to any other conclusion, a conclusion which also corresponds to the interpretive use the Office Québécois de la langue française ("Office") has practiced for over 15 years.
In fact, the Charter provides that the name of a business must be in French and that public signs and posters in Québec must be in French or in another language together with French, provided that the French text appears as markedly predominant. Its Regulation also states that a business name can be in a language other than French provided that the expression is used with a generic term in the French language. However, the Court of Appeal held that section 25 of the Regulation is a clear exception to these rules, providing that a "recognized trademark" within the meaning of the Trade-Marks Act may appear exclusively in a language other than French on all types of signs, including signage on storefronts, subject to a French version of the trademark having not been registered with the Canadian Intellectual Property Office.
The Court of Appeal held that the promotion and protection of the French language is, in Québec, a recognized imperative, obeying a real and persistent need. The use of French in the public square is one of the cornerstones of this policy. That said, the Charter and its prescribed use of French must be in the spirit of fairness and openness recognized in the Charter's preamble as well as in compliance with the limits upheld by the Canadian Constitution, particularly in terms of the division of powers and freedom of expression.
The deadline for the Attorney General to seek leave to appeal the Court of Appeal's ruling to the Supreme Court of Canada is June 26, 2015. Failing an appeal, the Government could decide to amend the Charter in order to force businesses to include a descriptive or generic term when using English-only trademarks on storefront signs.
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