This article was prepared with the assistance of Lambert Beaulac.
On January 10, 2024, the Regulation to amend mainly the Regulation respecting the language of commerce and business (Draft Regulation) was published in the Gazette Officielle du Québec. The Draft Regulation was eagerly anticipated by the legal community and businesses affected by the amendments to the Charter of the French Language (French Charter) introduced in June 2022 by the Act respecting French, the official and common language of Québec (Bill 96).
Bill 96, whose purpose was to give more teeth to the French Charter, significantly modified certain provisions of the French Charter, notably those relating to inscriptions on products and public signage in Québec. As a result, these amendments have led to uncertainties in the interpretation of the amended provisions. In this regard, we refer you to our most recent article “Bill 96 and its impact on the French-language requirements in Québec” for a summary of some of these changes and uncertainties regarding the language of commerce and business in Québec.
This article provides the highlights of the Draft Regulation. A subsequent article analyzing the proposed changes and their anticipated impact will follow in the coming weeks.
1. Inscriptions on products
- The term “product” includes its container or wrapping, as well as any document or object supplied with it.
Section 51 of the French Charter sets out the general rule for inscriptions on a product, its container or wrapping, or any document or object supplied with it. However, section 51.1 of the French Charter, introduced by Bill 96 and which sets out the “registered trademark” exception for inscriptions on products, refers only to the word “product”. The Draft Regulation addresses this inconsistency by clarifying the scope of the word “product” to include its container or wrapping, or any document or object supplied with it.
- A trademark in respect of which an application for registration is pending is considered a registered trademark.
Section 51.1 of the French Charter introduces the “registered trademark” exception for inscriptions on products, replacing the “recognized trademark” exception. Under the Trademarks Act, a registered trademark in Canada means a trademark that is registered in Canada. The “recognized trademark” exception, on the other hand, encompasses not only registered trademarks, but also common law trademarks that have become known in Canada (provided that no French version has been registered in Canada). This limitation to the exception was not well received. However, the Draft Regulation broadens the scope of the “registered trademark” exception to include any trademark in respect of which an application for registration is pending in Canada, as of the filing date of the application.
- The terms “generic” and “description of a product” are not clearly defined.
Under section 51.1 of the French Charter, a generic term or a description of a product included in a non-French registered trademark must be translated into French, and its French translation must appear on the product or on a medium permanently attached to the product. While the Draft Regulation provides definitions for “description” and “generic term”, these definitions give little indication as to how the Office québécois de la langue française (OQLF), the body in charge of enforcing the French Charter and its regulations, will interpret these terms in practice.
It should be noted that the Draft Regulation does not specify the meaning of the expression “on a medium permanently attached to the product”.
- The visual impact of the French translation of a “generic term” or a “description” included in a registered trademark displayed on a product must respect the no greater prominence requirement.
Section 51.1 of the French Charter is silent on the visual treatment to be given to the French translation of generic terms or descriptions of a product included in a non-French registered trademark that must appear on the product or on a medium permanently attached to it. The Draft Regulation now specifies that any such generic term or description in another language may not be given greater prominence than the generic term or description in French or be available on more favourable terms.
- Businesses have until June 1, 2027 to comply with section 51.1 of the French Charter for products manufactured before June 1, 2025.
The Draft Regulation provides for a grace period until June 1, 2027 to allow businesses to comply with section 51.1 of the French Charter, for products manufactured before June 1, 2025.
2. Commercial publications
- Commercial publications include social media and websites.
Although the OQLF considered that commercial publications included social media and websites before the adoption of Bill 96, these were not specifically listed in the definition of “commercial publications” under the French Charter. The Draft Regulation confirms the OQLF's interpretation by expressly specifying that these are commercial publications. Social media and websites must therefore comply, among other things, with section 52 of the French Charter.
- The “recognized trademark” exception.
Bill 96 remained silent on the “recognized trademark” exception for commercial publications. As mentioned above, a recognized trademark includes registered trademarks within the meaning of the Trademarks Act or common law trademarks that have become known in Canada (provided that a non-French version has been registered in Canada). The Draft Regulation was expected to replace the "recognized trademark" exception with the "registered trademark" exception for commercial publications, as was done in the French Charter for inscriptions on products and public signs and commercial advertising. However, the Draft Regulation does not so restrict the scope of the exception for commercial publications.
3. Public signs and posters
- Public signs and posters outside of “premises” displaying a registered trademark.
Bill 96 introduced section 58.1 to the French Charter for public signs and posters visible from outside “premises” displaying a non-French registered trademark. This change introduced uncertainty as to whether section 58.1 will apply only to premises or also to an immovable. This uncertainty stems from the fact that in the Regulation respecting the language of commerce and business, the requirement for the sufficient presence of French (revoked by the Draft Regulation) is applicable to both premises and immovables. “Premises” was essentially defined as a space, whether enclosed or not, in a mall, while “immovable” was essentially defined as a building. The Draft Regulation remedies this uncertainty by broadening the scope of “premises” to include “immovables”.
- French must be markedly predominant for public signs and posters displaying a registered trademark outside premises.
Section 58.1 of the French Charter replaces the sufficient presence of French requirement for public signs and posters displaying a registered trademark visible from outside premises with the more burdensome markedly predominant requirement.
The Draft Regulation provides guidelines for complying with this new requirement:
- The registered trademark must be accompanied by terms in French that have a much greater visual impact, i.e., be at least twice as large as the registered trademark, and offer equivalent legibility and visibility;
- A slogan, a generic term or any other descriptions of the nature of the business in French is acceptable;
- In assessing the visual impact, the registered trademark displayed must be considered; and
- This slogan, term or description need not appear on the same sign as the registered trademark. Terms in French may appear elsewhere on the building or premises, as long as they are visible and legible at the same time as the registered trademark, in an overall view, without having to move.
4. The “recognized trademark” exception: Three distinct regimes
It should be noted that the Draft Regulation creates three distinct regimes for the “recognized trademark” exception:
- For inscriptions on products, the exception applies to trademarks registered in Canada and to trademarks in respect of which an application for registration is pending in Canada (provided no French version has been registered);
- For commercial publications, including social media and websites, the “recognized trademark” exception remains unchanged, and therefore applies both to trademarks registered in Canada and to common law trademarks that have become known in Canada (provided no French version has been registered);
- For public signs and posters displaying a registered trademark visible from outside premises, the exception applies only to trademarks registered in Canada (provided no French version has been registered).
Please note that the Draft Regulation is subject to a 45-day consultation period which began on January 10, 2024. During this period, any interested party may submit comments to the Minister of the French Language. The Draft Regulation may therefore be amended. We encourage you to stay tuned for our upcoming publications on this subject.
The text of the Draft Regulation is available on the Gazette officielle du Québec website.
For more information on Bill 96 and the proposed changes to the French Charter and Regulation, please contact a member of our Trademarks & Brand Protection group for further guidance and assistance.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.