Last spring, major retailers were successful in challenging the Office québécois de la langue française (OQLF) position that the display of trademarks on signage, without a French descriptor, breaches the Charter of the French language (Charter) and its regulation (see our article here). The Quebec Government has since appealed the decision and the hearing is expected to begin later this year.
Meanwhile, a group of small businesses were mostly unsuccessful in defending claims of misuse of a language other than French on public signage, in commercial publications and on product labelling. In Quebec (Attorney General) v. 156158 Canada Inc. (Boulangerie Maxie's)1 (availablehere), the Court of Quebec was not prepared to excuse English language use on signage that was equivalent or more dominant than French wording. However, the court did reaffirm that non-registered trademarks can fall within the “recognized mark” exclusion from translation.
Twenty-four businesses joined forces after being charged with violating provisions of the Charter, namely for: commercial signage not in French; bilingual commercial signage where French was not markedly predominant; packaging where French was not afforded equal space; and postings on a commercial internet website that had no French equivalent. On the merits of the case, for commercial signage, the defendants relied on the interpretation of the expression “markedly predominant” and, for two of them, on the exception from translation of recognized trademarks. Also, the defendants contested the charges on constitutional grounds. They failed on all fronts and all defendants (but one) were found guilty as charged.
Section 58 of the Charter provides that commercial signage can be both in French and in another language as long as French is markedly predominant. Some of the defendants argued that posting the French version before the English version on commercial signage was sufficient to meet the markedly predominant criteria. The Court rejected that argument and held that “[w]hen it comes to the language of signs and the marked predominance of the French language, size does matter”. “Markedly predominant” requires more than mere priority in the placement of the French text of a bilingual sign. It requires that the visual impact of the French language be clear and unequivocal, i.e. characters used in the text in French have to be at least twice as large as those used in the text in the other language as described in the Regulation defining the scope of the expression “markedly predominant” for the purpose of the Charter of the French language.
Only one defendant was able to defend its actions by arguing it was using a “recognized trademark”, and was acquitted of the charges. Meldrum the Mover argued that its English-only slogan “Everything inside packed with pride” was used since 1930, and fell within the trademark exception. Subsection 25(4) of the Regulation Respecting the Language of Commerce and Business provides that a trademark on commercial signage can appear in another language than French if it is a recognized trademark (unless a French version has been registered). Interestingly, at the time of the alleged violations, the slogan only appeared on an old truck of the defendant, which had been out of commission for three years and was sitting in the business’s backyard in an area inaccessible to the public and therefore no longer used by the defendant. This questions how the OQLF obtained the “evidence” and the extent of which it is prepared to go to police complains with the Charter.
The Court acknowledged that non-registered trademarks can fall within the trademark exception and was satisfied that the phrase qualified as a common law trademark. Of note, the decision did not explain how this slogan was distinctive of the source of goods or services of Meldrum the Mover, nor if any consideration was given to the fact that the mark had not been in use for several years.
Alternatively, the Court noted that even if it erred in its interpretation of Meldrum the Mover’s trademark, the facts would still lead to the acquittal since the truck was no longer used and was located in an area inaccessible to the public. The violation would therefore be so insignificant that the Court could overlook it. This de minimus defense was also raised by the other defendants for each of their violations, arguing that any non-compliance was insignificant and trifling, but the Court rejected that approach except for Meldrum.
Another defendant raised the trademark exception, but failed, as it did not provide evidence that its slogan “Italian fancy leather goods” was used to promote goods or services in a distinctive manner.
The defendants alleged that the provisions in the Charter infringed their fundamental rights guaranteed by the Canadian Charter of Rights and Freedom and the Quebec Charter of Human Rights and Freedoms, more specifically the freedom of expression, the right to equality and the right to liberty.
The defendants argued that the linguistic landscape had changed significantly throughout the years such that the French language was no longer vulnerable, and therefore the principles emanating from earlier Supreme Court decisions Ford2 and Devine3 were no longer applicable. In Ford and Devine, the Supreme Court found that only allowing commercial signage in French was unconstitutional because it was an unreasonable limitation on freedom of expression. However, the Quebec government could legitimately insist on greater visibility of French on commercial signage and requiring “marked predominance” in French was an acceptable limitation on Charter freedoms. In the case at bar, the Court went on to review demographic and linguistic evidence submitted by each party and came to the conclusion that, au contraire, vulnerability of the French language still exists in Quebec, and in the absence of clear and compelling evidence showing that the linguistic landscape has changed since the Supreme Court decisions, the Court is bound by precedent to follow these decisions. The Court also dismissed the argument that the Charter violated equality rights, holding that the impugned legislation did not perpetuate prejudice or stereotyping. Further, the Court dismissed the argument that the Charter violated rights to liberty on the ground that choices predicated upon economic grounds, not personal grounds, do not fall within the ambit of the liberty guarantee.
Charter cannot be a victim of its own success
In all, this decision confirms the Quebec court’s willingness to uphold both the Charter and its principles of necessary protection of the French language, especially on signage. As the Court stated: “There is an obvious incongruity in using the success of the signs provisions of the [Charter] as fodder for its dismantling. The [Charter] cannot become a victim of its own success.”
This decision also reminds businesses that “markedly predominant” on public signage is conveniently defined in the Charter’sRegulations, and requires French text on bilingual signs that is at least twice as large as the other language. It also warns businesses that the OQLF can go to great lengths to try to gather its evidence, including looking in areas not readily accessible to the public.
Much like the above-mentioned case against the OQLF involving large retailers, this decision will most likely be appealed. À suivre…