The Court of Appeal of Quebec reaffirmed that the Charter of the French Language (Charter) does not require a trade-mark used on a storefront sign to be accompanied by a generic French term. This judgment confirms the Superior Court’s decision on April 9, 2014.
The importance of this issue is confirmed by the Court of Appeal having heard the appeal with five (instead of the usual three) judges. The court rendered its decision on the bench on April 27, 2015, after having heard the arguments of the Attorney General of Quebec without needing to hear the arguments of the retailers or interveners.
This decision stems from a motion for declaratory judgment filed by several retailers who sought guidance from the court on the interpretation to be given to the provisions of the Charter dealing with the language of public signs and the language of business names. The Charter generally states that such public signs must be in French (or in French and one or more other languages provided that the French version is markedly prominent), but the regulations enacted under the Charter include an exception for recognized trade-marks, provided that no French version of the trade-mark has been registered.
Around 2010, the Office québécois de la langue française (OQLF) started publicizing its position that such use of a trade-mark constituted use of a business name and was therefore required to be accompanied by a generic French term pursuant to the provisions of the Charter dealing with business names. The attorney general, following the position taken by the OQLF, issued fines over the last few years against a number of retailers in Quebec who use trade-marks on their storefront signs in a language other than French without a generic French term.
A group of major retailers, supported by the Retail Council of Canada and the International Trademark Association as interveners, contested this interpretation by the OQLF. The Superior Court disagreed with the OQLF’s position and found no requirement under the Charter to have a generic French term appear with a trade-mark on storefront signs. This decision was confirmed by the Court of Appeal.
The reasons for the decision were published on May 1, 2015. The court rejected the attorney general’s arguments by finding that certain sections of the Charter and the regulations respecting the language of commerce and business—namely subsection 58(3) and section 68 of the Charter and subsection 25(4) of the regulations—would be sterilized or completely ignored by the interpretation given to subsection 25(4) and section 27 of the regulations by the attorney general.
The Court of Appeal therefore found that the retailers’ practices with respect to signage comply with the Charter and its regulations, which allow the use of a trade-mark in a language other than French (provided that no French version has been registered), including where such a trade-mark appears on a storefront sign and whether or not this use of such a trade-mark could be considered as use of a business name. The Court of Appeal also mentioned that its finding is in line with the interpretation that the OQLF had given to the legislation prior to 2010.
The attorney general has 60 days to seek leave to appeal to the Supreme Court of Canada. It will also be interesting to see whether the Quebec government will consider making changes to the Charter, including requiring recognized trade-marks in a language other than French—when used in certain public signs—to be accompanied by a generic French term.