The Acting Minister of Culture and Communications, responsible for the Protection and Promotion of the French Language, Ms. Hélène David, presented yesterday the proposed modifications to the Regulation respecting the language of commerce and business of the Charter of the French language (the “Regulation”).
Historically, the rule from the Charter of the French language to the effect that public signs have to be in French (or in French and in another language provided that French is markedly predominant) benefited from what is known as the “trade-mark exception”, allowing trademarks to be used solely in English (or any other language other than French) for public signage if they are recognized within the meaning of the Trade-marks Act and for which no French version has been registered.
In 2012, the Quebec Court of Appeal ruled in favor of a group a retailers carrying on business in Quebec taking advantage of this exception, specifying that any attempt to modify the scope of this exception should be done by way of an amendment to the text of the relevant Regulation.
Modifications to the Regulation
On May 4, 2016, a draft amendment to the Regulation in question (attached hereto) was published in the Gazette officielle for a 45-day consultation period. Pursuant to this draft amendment, “Where a trade mark is displayed outside a building only in a language other than French under paragraph 4 of section 25, a sufficient presence of French must also be ensured on the site, in accordance with this Regulation”. The presence of French refers to a sign or poster with (i) a generic term or a description of the products or services concerned, (ii) a slogan or (iii) any other term or indication, favouring the display of information pertaining to the products or services to the benefit of consumers or persons frequenting the site. The newly proposed articles also include additional guidance with respect to the interpretation of these new principles.
As a result, any person having as part of its public signage a trade-mark that is only in English will have to add one of the three above-mentioned elements to comply with the new rules.
It should be noted that these new measures will not impact the other trade-mark exceptions available in the Regulation in connection with inscriptions on a product or commercial advertising, nor the ability to use any artificial combination of letters, syllables or figures or the use of pictographs, figures or initials or a family name, a given name or the name of a personality or character or a distinctive name of a cultural nature.
Entry into Force and Transitional Measures
The draft of the Regulation provides that the Regulation will come into force within 15 days of its official publication, following the consultation period. Its provisions would apply as of that date to the installation of new signs or posters on which a trade-mark appears, and to the replacement of existing signs or posters bearing a trade-mark. Existing signs and posters will need to be brought into conformity with the Regulation within 3 years after the entry into force of the Regulation.
We will keep you informed of the publication of the Regulation, but do not hesitate to inform your clients about this today. We are of course available to assist with any questions they may have.