On May 4, 2016, the Quebec government followed through on its plan to amend the Charter of the French Language (the “Charter”), publishing draft regulations which require the sufficient presence of French when a trademark in a language other than French is displayed on signage or posters outside a place of business.
Just over a year ago, the Quebec Court of Appeal unanimously upheld the Superior Court decision that the Charter did not require a descriptive French term to be added to non-French trademarks on signage. The Quebec Government did not seek a further appeal but announced plans to amend the Charter, requiring Quebec businesses to add French to their outdoor signage, without altering registered trademarks. The Charter is intended to promote and protect the French language in Quebec and is administered by the Office québécois de la langue française (“OQLF”).
The new draft regulations require Quebec businesses that display a trademark only in a language other than French on signs or posters either outside their place of business, or that are intended to be seen from outside their place of business, to ensure a sufficient presence of French on the site. Signs or posters outside premises situated in a mall or a shopping centre are included in this requirement. Compliance with the requirement can be accomplished through the presence of French on a sign or poster in:
- a generic term or description of the products or services offered by the business;
- a slogan; or
- any other term or indication, preferably pertaining to the products or services to the benefit of consumers or persons frequenting the site.
Signs on an independent structure such as a totem or post near a place of business are only caught if there is no other outside sign or poster on which the trademark appears.
The “sufficient presence of French” requirement means that the French generic terms, slogans or other descriptions relating to the products or services on the signs or posters must:
- be permanently visible, similar to that of the trademark displayed; and
- be legible in the same visual field as that of the non-French trademark on signs or posters.
The business must ensure permanent visibility of the French content or have a system in place to guarantee its presence or replacement if the sign is of a precarious nature.
The government has indicated that the draft regulations follow a consultation process involving various groups, including businesses operating in Quebec, and that the changes will apply to more than 1,800 businesses province-wide.
The next step is a 45-day public consultation process, during which written comments can be submitted to the government. The regulations will then be amended if necessary and the Quebec government will decide on whether the changes to the draft regulations are acceptable. Once the regulations are finalized and published in the Gazette officielle du Québec, they will come into force fifteen days after publication. Although the changes are expected to come into force this year, there will be a three-year grace period “for signs or posters existing at the time the new regulations come into force and in a situation where the same trademark is already used on signs or posters elsewhere in Quebec as part of a franchise system or otherwise.” The new regulations will apply as of the date they come into force with respect to the installation of new trademark signs or posters and the replacement of existing signs or posters.
Given the OQLF’s increased budget this year and the potential fines of $1,500 to $20,000 for non-compliance with the Charter, businesses in Quebec should expect continued enforcement of the provisions relating to signage and should take steps to comply. Trademark owners should also consult trademark counsel regarding whether the addition of the French words affect their rights in registered marks and / or require the filing of additional trademark applications.