On May 4, 2016, the Government of Quebec published proposed Regulations that aim to ensure there is “a sufficient presence of French” on the outdoor signage of establishments on which trademarks appear in a language other than French. These proposed Regulations would amend current Regulations under the Charter of the French Language (Charter) and would require Quebec businesses using non-French trademarks on their outdoor signs to ensure that some French content is also present.
The proposed Regulations are subject to a public consultation period until June 18, 2016, and may still be amended. Once published, the final version of the proposed Regulations should generally come into force within 15 days of such publication for new signs or replacement signs. However, some signs (including existing signs) would benefit from a grace period of three years.
The proposed draft Regulations follow a 2012 decision by the Court of Appeal of Quebec that confirmed that under the current legislative text, and contrary to the position then advocated by the Office québécois de la langue française (OQLF), a recognised trademark in a language other than French does not have to be accompanied by a generic term or expression in French when appearing on storefronts signs. The Quebec government is now proposing to amend the relevant regulations in an effort to ensure the visibility of French throughout the province.
As a general rule, the current provisions of the Charter and its Regulations require inscriptions on public signs to appear in French, with an exception for recognized trademarks that may appear in a language other than French as long as no French version of the trademark has been registered. These principles will continue to apply, but additional requirements will govern the use of non-French trademarks outside of an immovable (or building), such as on storefront signage, on an independent structure, on roof top signs, on signage located inside a building, mall or a shopping center, or on signs or posters inside a building intended to be seen from outside.
The proposed Regulations state that in cases where non-French trademarks appear, a “sufficient presence of French” must also be ensured. This presence of French may be ensured by way of a generic term or description of the products and/or services concerned, a French slogan or any other term or description (with a preference for the display of information pertaining to the products or services to the benefit of consumers or other persons frequenting the site). Some elements, such as French inscriptions relating to opening hours, telephone numbers, addresses, numbers and percentages, will not be taken into account in this assessment.
In order for these French inscriptions to be considered sufficient, they must be permanently visible and shown in the same visual field as the sign or poster bearing the non-French trademark. Signage will be considered as complying with these requirements if the French inscription is designed, lighted and situated so that both the inscription and the trademark are legible together at all times when the trademarks is visible. The inscription does not necessarily have to appear in the same place, for the same number of times or in the same material or size as the trademark.
The legibility of the French inscription will be assessed based on the location of the trademark. If the sign or poster on which the mark appears is located on the outside of a building along a sidewalk, legibility will be assessed from the sidewalk along the façade on which the trademark appears; If it is within a larger building or a shopping mall, legibility will be assessed from the center of the alley or area facing the premises; or if it is visible from a highway, from such highway. If it is necessary to be within one meter to read an inscription, this inscription will not be taken into account unless the same is true for the trademark.
The French inscriptions must ensure permanent visibility, and will therefore not be compliant if they are precarious in nature (due to the materials used or the manner in which they are posted, for example, if the French inscriptions can be easily removed, unless the system used guarantees their presence or replacement).
The proposed Regulations specify that these rules would not apply to temporary or seasonal stands or kiosks or to totem-type structures bearing two or more trademarks. Totem-like or other independent structures near a building or premises are not subject to these rules unless there is no other outside sign or poster on which the trademark appears.
In light of these proposed Regulations, businesses should give serious consideration to the changes that may be required to their outdoor signs, and to any signs visible from the outdoor, and to any trademark protection that they may wish to seek with respect to French language additions. In doing so, it will be important to keep in mind that the current “recognized trademark exception” outlined above will continue to apply, including with respect to inscriptions on products, their labelling and packaging, that it will remain applicable only to the extent that no French version of a recognized trademark has been registered in Canada. It will be important to ensure that a coherent strategy is put in place to provide adequate protection for marks and slogans used on outdoor signs while ensuring compliance with all other obligations under the Charter.