It appears that the Superior Court of Quebec may have put an end to a contentious legal debate involving the Charter of the French Language (the French Charter) and the posting of English-only trademarks on public signs in Quebec.
More specifically, the French Charter provides that French is the official language of the province of Quebec and seeks to ensure that the French language remain the predominant language of work, communication, commerce and business. With respect to employment matters, we remind you that the French Charter expressly provides that all Quebec workers have a right to work in French. In this regard, every Quebec employer must draft its written communications to its staff in French. Job application forms and employment offers must be drafted in French as well. In addition, enterprises with at least fifty (50) employees in Quebec must undergo a francization process whereby it must ensure that the use of French is generalized at all levels of its business, namely by ensuring a generalized use of French through:
The knowledge of French on the part of management and other members of personnel; The use of French as the language of work as well as the language of all internal communications; The use of French in working documents, including manuals; and The use of French in information technologies provided to employees, including computers, software, keyboards and email accounts.
The French Charter also provides that public signs and commercial advertising must be in French. The Regulation respecting the Language of Commerce and Business (the French Regulation), enacted pursuant to the French Charter, does however provide a specific exception to this rule by permitting that a trademark may be posted exclusively in English on public signs and posters, at the condition that no French version of the trademark has been registered.
In 2011, the Office québécois de la langue française (the OQLF), the authoritative body responsible for ensuring compliance with the French Charter, launched an official campaign condemning the posting of English-only trademarks as store banners. The OQLF’s position is that the posting of a non-French trademark as a business name on a store banner or signage must be accompanied by a French descriptive or generic term. The OQLF bases its position on other provisions of the French Charter and the French Regulation, which state that a firm name must be in French, or may appear in English only if it is accompanied by a French generic term.
As a result of this campaign, many retailers were ordered by the OQLF to modify their store signage by adding a French expression.
In response to the OQLF’s position, a group of large retailers including Gap, Costco, Wal-Mart and Best Buy filed an action for a declaratory judgment asking the Quebec Superior Court to rule on this significant issue.
On April 9, 2014, in a long-awaited decision the Quebec Superior Court declared that the posting of a trademark in a language other than French in commercial advertising, including storefront banners, is valid and does not contravene the French Charter.
The Court relied on various arguments to support its judgment, including the following:
The OQLF’s proposed interpretation of the French Charter has the effect of depriving the legal exception for trademarks of any practical application. Up until recent years, the OQLF permitted the posting of English-only trademarks on retail store banners and confirmed that such retailers, in doing so, were in compliance with the French Charter requirements. The provisions of the French Charter and the French Regulation were clear and supported by a consistent interpretation for two decades.
The Court further added that it is up to the Quebec legislator to amend the law if there is a concern that the French face of Quebec is being threatened by the posting of English-only trademarks. The Court further added that nothing prevents Quebec businesses from voluntarily adding a French descriptive term to their trademark on their signage, in order to support the French identity of Quebec.
The Attorney General of Quebec is currently reviewing the judgment and has thirty (30) days to decide whether to seek an appeal of the decision.