If you or your client is selling or contemplating selling products in Canada, and most particularly in the Province of Québec, be aware that the packaging and labelling cannot be in English only. Labelling on products initially intended for other markets such as the American market will have to be adjusted according to particular language requirements specific to Canada and to the Province of Québec. Most particularly, as English and French are both Canada’s “official languages”, labelling on prepackaged products must be bilingual, subject to certain exemptions, under the Canada Consumer Packaging and Labelling Act1 and regulations2. In addition, French must be predominant in many instances in Québec, in accordance with the Charter of the French Language3 (the “Charter”).
The Charter was adopted by the National Assembly of the Province of Québec, Canada, in 1977 to ensure the quality and influence of the French language. As a result, French is both the official language of Québec and the normal language of work and commerce. The Charter and its regulations have a considerable impact on doing business in Québec, and more precisely on business and trade names, labelling and advertising, signs, websites, and customer relations. Simply put, the general rule is that French predominates. However, this rule is subject to exceptions that we will explore throughout this text, and trade-marks are part of these exceptions. As we will see, there is no legal obligation to have specific French trade-marks. In other words, BLOCKBUSTER can lawfully do business under and use its trade-mark without having to translate it into something like SUPERPRODUCTION!
It should be noted that the exemptions provided for under the Charter and regulations thereunder are not limited to the English language but rather apply to the use of any language other than French.
Labelling and Product Inscriptions
Under the Charter4, product inscriptions, labels, product directions and warranties must be drafted in French. Inscriptions in other languages are permitted as the French inscription may be accompanied with one or more translations; however, they may not be given greater prominence than that in French5.
There are of course exceptions to this requirement such as for cultural or educational products (books, magazines, disks) for which the content is only in a language other than French6. Also, an inscription on a product may be exclusively in a language other than French, such as in the following cases : (i) the product is from outside Québec, has not yet been marketed in Québec and is being exhibited at a convention, conference, fair or exhibition, (ii) the product is from outside Québec, is intended for incorporation into a finished product or for use in a manufacturing, processing or repair operation and is not offered in Québec for retail sale, or (iii) the product is from outside Québec and the inscription is engraved, baked or inlaid in the product itself, riveted or welded to it or embossed on it, in a permanent manner7. Nevertheless, inscriptions concerning safety must be written in French and appear on the product or accompany it in a permanent manner8.
Also, a toy or game the operation of which requires the use of a non-French vocabulary may bear an inscription that is exclusively in a language other than French provided that a French version of the toy or game is available on no less favourable terms on the Québec market9.
Finally, there is an exception for the list of the ingredients of a “cosmetic”, as defined by the Canada Food and Drugs Act10, which can be listed only by their INCI name (the International Nomenclature Cosmetic Ingredient name assigned to an ingredient in the ICI Dictionary).
Commercial Publications and Websites
The Charter11 provides that catalogues, brochures, folders, commercial directories and similar publications must be drawn up in French. Two separate versions are permitted, one exclusively in French, the other exclusively in another language, provided that the material presentation of the French version is available under no less favourable conditions of accessibility and quality than the version in the other language. Such publications can also be prepared in both French and another language, provided that the French text is at least as prominent as any other language.
Seeing that commercial advertising, as a whole, is dealt with in the Charter regardless of the medium used, commercial advertising posted on a website12, as well as advertising material sent by fax or electronic mail, must be in French. For example, a business with an establishment in Québec that sells products in Québec which are advertised or sold through a corporate website must provide a French language translation of its website. The website’s server location or the country code or top-level domain name are not relevant criteria to decide whether or not the Charter is applicable. The principal consideration remains the location of a business establishment. A disclaimer notice mentioning that the website is not available to Québec residents also does not constitute a legitimate alternative to derogate from the enforcement of the Charter, as it is a law of public interest that cannot be avoided13.
Public Signs, Posters, and Commercial Advertising
The Charter14 states that public signs, posters, and commercial advertising must be in French. Another language may be added provided that French be “markedly predominant”, meaning that French is to have a much greater visual impact than the text in the other language15.
In concrete terms, where texts both in French and in another language appear on the same sign or poster, French must be at least twice as large and visible as any other language16.
It is to be noted that this rule does not apply to advertising carried in news media that publish in a language other than French, or to messages of a religious, political, ideological or humanitarian nature if not for a profit motive17.
Business names in Québec must comply with the Charter18, which requires that they be in French, and under which it is necessary to have a name in French in order to obtain juridical personality19. Furthermore, every business whose name is in a language other than French must declare the French version of the name used in Québec in carrying on activities or in operating an enterprise20. Nevertheless, the name of an enterprise may be accompanied with a version in a language other than French provided that, when it is used, the French version of the name appears at least as prominently21.
The Regulation respecting the language of commerce and business22 allows for an expression taken from a language other than French to appear in a business name to specify it, provided that the expression is used with a French generic term. In addition, in texts or documents drafted only in a language other than French, a name may appear in the other language only23.
Standard Exemptions and Trade-Mark Rights
On the whole, the following may appear exclusively in a language other than French, whether it is with regard to labelling, commercial publications, public signs and posters, or advertising : (i) the name of a firm established exclusively outside Québec, (ii) the name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto or any other non-commercial motto, (iii) a place name designating a place situated outside Québec, a family name, a given name or the name of a personality or character or a distinctive name of a cultural nature, and of most importance (iii) a recognized trade-mark within the meaning of the Trade-marks Act24, unless a French version has been registered25. Seeing that under the Canada Trade-marks Act26, a trade-mark need not specifically be registered in order to be recognized, proof of the use of an unregistered trade-mark in association with products or services for a certain time could be sufficient to establish rights in the trade-mark, thereby qualifying for this exemption under the Charter27. The “Office québécois de la langue française” (the “Office”), a government body which administers and ensures compliance with the Charter, makes the following comments regarding the use of trade-marks in a language other than French, “we assume that the users of these marks will take it upon themselves to register a French version unless : i) the mark cannot be translated; or ii) the mark is such that the French version of which would have no commercial value” [Our translation]28. Therefore, when a trade-mark is registered in French, the exception does not apply. Only trade-marks that are not translated into French can be used on packaging, commercial publications or advertising.
A similar exemption is also provided for cultural or educational products or activities provided that the content of same is in the other language, and the vehicle used is a news medium that publishes or broadcasts in that other language29, as well as for conventions, conferences, fairs or exhibitions, intended solely for a specialized or limited public30.
That being said, nothing in the Charter precludes the use of any artificial combination of letters, syllables or figures or the use of pictographs, figures or initials in product inscriptions, commercial publications and advertising, or on public signs and posters31.
Sanctions and Recourses under the Charter
The Office, created by the Charter, is responsible for monitoring the linguistic situation in Québec and receiving observations and complaints from the public32. It has the power to make inspections or inquiries either on its own initiative or following the filing of a complaint, whether by the public or a competitor of the targeted business33. In practice, however, the Office usually only undertakes an inspection or inquiry following a complaint. A person making an inspection for the purposes of the Charter may, during business hours, enter any place open to the public. In the course of his inspection, the person may, in particular, examine any product or document, make copies and require any relevant information, and hindering an investigation by the Office is prohibited. Should the Office find that the Charter is not being complied with, it shall issue a formal notice to the offender. Should the offender not comply with the notice, the Office will then refer the matter to the Attorney General for prosecution.
A person who contravenes a provision of the Charter or the regulations thereunder is liable for a first offence, to a fine of $250 to $700 for individuals, and $500 to $1,400 for legal persons. For subsequent convictions, fines range from $500 to $1,400 for individuals, and $1,000 to $7,000 for legal persons34. The person may also be ordered to remove or destroy non-compliant signs, ads, billboards, etc.35