In today's global market, it is common for businesses to expand their client base into different provinces and countries. With such expansion also comes the obligation of ensuring that the products or services offered are commercialized in accordance with the laws of such jurisdictions, including notably any applicable language laws.
For anyone doing business in Quebec, or considering doing so, the language law to be carefully considered is the Charter of the French Language (R.S.Q. c. C-11, hereinafter the "Charter") and its ensuing regulations that establish the legal framework, notably, regarding the language requirements for inscriptions on products, commercial publications and commercial advertising.
General rules.
- Inscriptions on products. Pursuant to the Charter, any inscription on a product offered for sale in Quebec, its label, container, wrapping or inserts/documents supplied therewith, must be in the French language (Charter, section 51(1)).
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However, other languages may also be used under certain conditions. In particular, inscriptions on products that must be in French may also be accompanied with a translation so long as such translation is not given greater prominence than the French version (Charter, section 51(2)).
- Commercial publications. Any commercial publication relating to products or services offered in Quebec, such as catalogues, brochures, flyers, etc., must also be in the French language pursuant to the Charter (Charter, section 52).
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Again, other languages may also be used under certain conditions. For example, as for inscriptions on products, another language may also be used together with the French language so long as the other language displayed is not given greater prominence than French (Charter, sections 89 and 91). Separate versions of such commercial publications exclusively in one language, i.e. one version exclusively in French and one version exclusively in English, are also permissible, provided that the version exclusively in French is just as accessible and of the same quality as that in the other language (Regulation respecting the language of commerce and business, R.S.Q. c. C-11 (hereinafter "RRLCB"), section 10).
- Websites. It is important to note that websites are considered to be a form of "commercial publication" and may be subject to the above-mentioned rules.
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In this regard, the current practice of the Office de la Langue Française (hereinafter the "OLF"), the body in charge of enforcing the Charter and its regulations, is to require that any business or dealer that has a place of business or address in Quebec and that offers services or makes products available in Quebec stores, have a French website.
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It should be noted that should the Charter be considered to apply to a given website, a French version of the entire website must be available, including not only substantive content, but also terms of service, privacy policies, legal notices, etc.
- Commercial advertising. Any commercial advertising, including inscriptions on shopping bags and promotional items, must also be in the French language pursuant to the Charter (Charter, section 58(1)).
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Again, other languages may also be used in certain circumstances. Notably, barring certain specific circumstances where French is required to be the exclusive language, such as commercial advertising on or in means of public transportation, commercial advertising may generally also be in another language in addition to French, so long as the French version is markedly predominant (Charter, section 58(2)), i.e. the French version has a much greater visual impact than the version in any other language (Regulation defining the scope of the expression "markedly predominant" for the purposes of the Charter of the French language, R.S.Q., c. C-11, section 1).
- Assisting in the commission of an offence. Recent amendments to the Charter have made it such that "whoever does or omits to do something in order to assist a person to commit an offence under [the Charter] or the regulations, or advises, encourages or incites a person to commit such an offence, is also guilty of the offence" (Charter, section 208.3). Although neither the OLF nor the Courts have yet had the opportunity to provide any guidance as to the scope, interpretation or application of this new section, it would appear to grant the OLF a greater reach, notably with regard to who can be considered liable pursuant the Charter, and should therefore be kept in mind when considering the above-mentioned rules.
Trademark exception. One notable exception to the general rules stated above is that a trademark recognized under the Trademarks Act may be used exclusively in a language other than French, be it on products, in commercial publications or in commercial advertising, so long as no French version of the trademark has been registered (RRLCB, sections 7(4), 13(4) and 25(4)).
This exception applies to all trademarks, whether common law trademarks or registered trademarks, so long as they are indeed trademarks and not, for example, trade names, to which the exception does not apply.
However, it is important to note that despite the foregoing, not all trademarks are created equal when it comes to the application of this exception. Indeed, the current practice of the OLF is to consider only registered trademarks as "recognized under the Trademarks Act."
Where the trademark exception is being invoked in respect of a common law trademark, the determination of whether the exception applies is left to a court of competent jurisdiction in the course of penal proceedings wherein the burden and corresponding expense of proving such rights befalls upon the person invoking the exception, i.e. the trademark owner.
As such, if one is considering not translating trademark(s) and relying on the trademark exception, the safest course of action is to obtain a trademark registration before offering any products or services in association with such trademark(s) in Quebec.
Procedure followed by the OLF. Notwithstanding that it can act on its own initiative (Charter, section 167), the current practice of the OLF is to investigate only upon receipt of specific complaints brought by individuals.
Once a complaint is received, an investigator will generally be dispatched to investigate the subject of the complaint. Should the investigator conclude that there has been a violation of the Charter or any of its regulations, the current practice of the OLF is to send a courtesy letter informing the person concerned of the identified violation, providing a certain timeframe in which to remedy the situation.
Should the person concerned fail to remedy the situation to the OLF's satisfaction, the OLF will generally then send a formal cease & desist letter imposing a strict deadline to comply with the demands set forth therein. Should this formal cease & desist not be complied with, the matter is then referred to the Attorney General who has the authority to institute penal proceedings accordingly.
Potential exposure for a violation of the Charter. With regard to potential exposure should someone be found to be in violation of the Charter pursuant to penal proceedings, it is important to note that the Court has the power to impose significant fines, especially as each individual model of a given product held to be in violation of the Charter could potentially be considered a distinct offence, which could give rise to a separate fine.
Indeed, pursuant to recent amendments to the Charter, the Court can impose fines for a first offence in the order of $600 to $6,000 in the case of a natural person, and $1,500 to $20,000 in the case of a legal person. These fines are doubled for subsequent violations.
Moreover, upon application by the prosecutor, a further fine equal to the financial gain realized or derived from the violation of the Charter may also be imposed, even if the maximum fine set out above has already been awarded.
Émilie Dubreuil, Montreal
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