On June 17, 2015, Mrs. Hélène David, Minister of Culture and Communications and Minister responsible for the Protection and Promotion of the French Language, announced that the Regulation respecting the language of commerce and business (the Regulation) would be modified further for a more visible presence of the French language on public signage. How did we get to this point? And what does it mean for businesses in Québec? This Osler Update takes a closer look.

Background

On April 27, 2015, the Québec Court of Appeal (the QCA) dismissed the Québec (Procureure générale) v. Magasins Best Buy ltée, 2015 QCCA 747 (CanLII)[1] case. In its decision, the QCA turned down the arguments of the Attorney General of Quebec (the AGQ), ruling in favour of the Best Buy, Costco, Gap, Old Navy, Wal-Mart, Toys ‘R’ Us, Curves and Guess retail chains and concluding that the Charter of the French Language (the Charter) and its regulations allow English trademarks to be used on public signage without adding any French-language generic term. The QCA decision thus confirmed the ruling of the Superior Court in its judgment of
April 9, 2014[2].

In its decision, the QCA first restated the importance of promoting and protecting the French language in Québec, emphasizing the fact that signage is a pivotal part of the policy. Section 58 of the Charter provides that:

"58. Public signs and posters and commercial advertising must be in French.

They may also be both in French and in another language provided that French is markedly predominant.

However, the Government may determine, by regulation, the places, cases, conditions or circumstances where public signs and posters and commercial advertising must be in French only, where French need not be predominant or where such signs, posters and advertising may be in another language only.” (Our underline.)

The circumstances where any form of public signage can be in one language only are specified in Section 25 of the Regulation respecting the language of commerce and business.

"25. Where public signs and posters and commercial advertising may be in another language only:
[…]

(4) a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered. 1985¸c. T-13)” (Our underline.)

The above named retail chains only had an English version of their respective trademarks, and everything in the Regulation seemed to indicate that the respondents were in compliance with the requirements. The AGQ, however, made the following argument: Since the respondents “use their trademarks as names, in order for their customers to be able to identify them, they are therefore subject to the rules that apply to names.” (Unofficial translation.)

Sections 63 and 67 of the Charter deal with the name of enterprises. Pursuant to section 63, “the name of an enterprise must be in French.”

Section 67 provides that “expressions taken from other languages may appear in the names of enterprises to specify them” (as distinctive terms).

Furthermore, section 27 of the Regulation has the following wording:

"27. An expression taken from a language other than French may be used as a specific element in a firm name provided that the expression is used with a generic element in the French language.” (Our underline.)

The AGQ held that section 25(4) of the Regulation only protected trademarks in writing, but not on signage, as an enterprise name. According to the AGQ, sections 25 and 27 of the Regulation should be read together, and understood as requiring that trademarks be accompanied by a generic French description.

The QCA rejected the AGQ’s arguments based on interpretive principles. Such a reasoning would deprive of their meaning the words “in another language only,” as per section 58 of the Charter and section 25 of the Regulation. Trademarks fall under the exception permitting to display trademarks in a language other than the French language. Furthermore, section 68 of the Charter provides that “in public signs and posters […], the use of a version of a name in a language other than French is permitted […] pursuant to section 58 and the regulations enacted under that section,” which brings back the very exception applying to trademarks provided for in subsection 25(4) of the Regulation.

It should be noted that, for 15 years, the Office québécois de la langue française (the OQLF) had followed the principle that trademarks with an English only version can be used as they are, without any French generic term. Although the AGQ has contended that “an administrative interpretation contrary to the language of the law cannot prevent the reinstatement of its real meaning,” the QCA made the trial judge’s words its own by stating in its turn that “there has to be a compelling reason to reject an interpretative usage that is not contrary to the text.” As it is, the change of bearings of the OQLF since spring 2012 “is not reflected in the legislative and regulatory texts.” (Unofficial translations.)

New Requirements Possible

The AGQ has chosen not to request an authorization to appeal from the Supreme Court, and on June 17, 2015, the Minister of Culture and Communications and Minister responsible for the Protection and Promotion of the French Language, Mrs. Hélène David, announced that the Regulation would be modified to further a more visible presence of the French language in trademarks on public signage. She noted that the bill will preserve the integrity of trademarks, which are under federal jurisdiction. The bill is to be published in the Gazette officielle du Québec as soon as in autumn 2015, and should give businesses several options such as adding a generic or descriptive term or a slogan. Minister David said that in both cases, the French generic terms or slogans will have to be permanent and “as visible as the trademark.” Interested parties will have 45 days after the bill is published to submit comments. The new regulation should enter into force at the beginning of 2016.

The Minister also mentioned that the government is aware of the costs that this new requirement may entail for businesses. It remains to be seen how these additional costs for businesses will actually be managed by the government. Will the new regulation be phased in in such a way that businesses will have a period of time to comply after it has come into force? Will penalties for non-conformance be restrained? Will, in particular, small businesses be entitled to any financial support? A new episode has officially started.