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ADVERTISING AND PUBLIC SIGNS IN QUÉBEC: MORE FRENCH IN SIGHT

2022-03-29

Advertising and public signs in Québec: more French in sight

Geneviève Hallé-Désilets*
ROBIC LLP
Lawyer

On May 13, 2021, the Government of Québec introduced a bill entitled An Act respecting French, the official and common language of Québec (“Bill 96”), proposing a major reform to the Charter of the French language (the “Charter”), among other legislation. If passed as drafted, Bill 96 will change the way the Charter governs the use of French as the language of commerce and business in the province, including with respect to public signs and posters and commercial advertising.

  1. Current situation

According to the Charter, the following must be written or appear in French:

  • Any inscription on a product, on its container or on its wrapping, or on a document or object supplied with it, including the directions for use or the warranty certificates, and on menus and wine lists (such text may be accompanied by translations, which cannot, however, override the French text)[1];
  • Catalogs, brochures, folders, commercial directories and any similar publications[2]; and
  • Public signs and posters and commercial advertising (subject to regulatory requirements, they may appear in both French and another language, provided that French is markedly predominant)[3].

The Regulation respecting the language of commerce and business (the “Regulation”) contains certain derogations or clarifications to the principles of the Charter. For example, in the above-mentioned cases, it allows the use of a recognized trademark within the meaning of the Trademarks Act in a language other than French, unless a French version has been registered[4]. The term “recognized trademark” has been broadly interpreted by the Courts to include not only registered trademarks, but also trademarks that are the subject of an application for registration with the Canadian Intellectual Property Office (“CIPO”) and trademarks in use[5] . Notwithstanding this interpretation, the Office québécois de la langue française (“OQLF”) considers that only registered trademarks should be considered as “recognized” trademarks within the meaning of the Trademarks Act, and therefore covered by the exceptions of the Regulation.  

  1. Proposed changes

Bill 96 proposes the following amendments and/or additions:

  • Translations of product inscriptions would not be allowed to be made available in conditions more favorable than the French text (nor may they override the French)[6]. For example, the user manual of a product available in English must also be available in French[7];
  • The principle of technological neutrality of commercial publications would be expressly provided for, and such publications would also include order forms and any other document of the same nature available to the public. However, no such document in a language other than French may be made available to the public when its French version is not available on terms that are at least as favourable[8];
  • A trademark appearing in commercial advertisements and on public signs andpostersmay only be in a language other than French if it has been registered with CIPO and that no French version has been registered. This amendment suggests that if these two conditions are not met, marks in a language other than French will have to be translated into French. In addition, trademarks registered in a language other than French that appear on public signs and posters visible from outside premises will have to be accompanied by inscriptions in French that are markedly predominant (and no longer only sufficient)[9].

The OQLF would also have additional powers, including the ability to apply to the court for an order to remove or destroy posters, signs, advertisements, billboards and illuminated signs that violate the Charter[10].

  1. Coming into force

Most of the provisions of Bill 96 would come into force on its date of assent[11]. However, the new requirement to register a trademark displayed in a language other than French in commercial advertisements and public signs and posters would not come into force until three (3) years after the date of assent[12] .

This period should allow sufficient time for owners of trademarks in a language other than French to register their trademarks with CIPO, and thus benefit from the proposed new exception to the extent that no French version of these trademarks exists on the register. As the registration process is currently a minimum of three (3) years, it would be advisable for these owners to consider filing an application for registration quickly, to avoid having to review (and possibly modify) all their public signs and posters and advertising material to ensure compliance with the potential new requirements of the Charter. Of course, there are many other benefits to registering a trademark.

According to the information brought to our attention, the study of Bill 96 seems to be progressing well and it could be adopted as early as this spring. There is no doubt that it is better to prepare in advance, particularly with respect to the filing of trademark applications with CIPO, given the current registration delays. In the meantime, the Charter and Regulations in their current form continue to apply.

For more information on the requirements of the Charter of the French language and its amendments that could have an impact on your business or that of your clients, we invite you to contact our specialized trademark team.

© CIPS 2022.

* Geneviève Hallé-Désilets is a lawyer at ROBIC, L.L.P., a multidisciplinary firm of lawyers and patent and trademark agents.

[1] Section 51 of the Charter.

[2] Section 52 of the Charter.

[3] Section 58 of the Charter.

[4] Subsections 7(4), 13(4) and 25(4) of the Regulation.

[5] Quebec (AG) v. 156158 Canada Inc. (Boulangerie Maxie’s), paragraph 106 (appeal dismissed: 156158 Canada inc. v. Attorney General of Quebec); Quebec (Attorney General) v. St-Germain Transport (1994) inc., paragraph 6.

[6] Section 42 of Bill 96.

[7] “Étude détaillée du projet de loi n° 96, Loi sur la langue officielle et commune du Québec, le français”, Journal des débats de la Commission de la culture et de l’éducation, 42nd Legislature, 2nd Session (commenced: October 19, 2021), Thursday, February 17, 2022 – Vol. 46 No. 16, online (National Assembly of Quebec): < http://m.assnat.qc.ca/fr/travaux-parlementaires/commissions/cce-42-2/journal-debats/CCE-220217.html#11h30 >.

[8] Section 43 of Bill 96.

[9] Section 47 of Bill 96.

[10] Section 113 of Bill 96 (section 184 of the Charter).

[11] Section 201 of Bill 96.

[12] Subsection 201(5) of Bill 96.