LANGUAGE REQUIREMENTS IN QUÉBEC UNDER

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1 AUG UST 2008 LANGUAGE REQUIREMENTS IN QUÉBEC UNDER THE CHARTER OF THE FRENCH LANGUAGE : WHAT DO YOU NEED TO KNOW?* By Geneviève Bergeron and Réa Hawi** 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 Act 1 and regulations 2. In addition, French must be predominant in many instances in Québec, in accordance with the Charter of the French Language 3 (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! ** Prepared by Geneviève Bergeron, Partner, and Réa Hawi, attorney and legal analyst, at Borden Ladner Gervais LLP, 1000 de La Gauchetière Street West, Suite 900, Montréal, Québec, Canada. * This text is intended to be a brief and general overview of the requirements under the Québec Charter of the French Language and is not a substitute for legal advice. As all situations are fact-specific, we strongly advise readers to seek appropriate legal counsel for any related questions. 1 R.S.C. 1985, c. C C.R.C., c R.S.Q., c. C-11.

2 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 Charter 4, 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 French 5. 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 French 6. 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 manner 7. Nevertheless, inscriptions concerning safety must be written in French and appear on the product or accompany it in a permanent manner 8. 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 market 9. Finally, there is an exception for the list of the ingredients of a cosmetic, as defined by the Canada Food and Drugs Act 10, which can be listed only by their INCI name (the International Nomenclature Cosmetic Ingredient name assigned to an ingredient in the ICI Dictionary). 4 S Regulation respecting the language of commerce and business, c. C-11, r Ibid., S Ibid., S Ibid. 9 Ibid., S R.S.C. 1985, c. F-27. 2

3 Commercial Publications and Websites The Charter 11 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 website 12, 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 avoided 13. Public Signs, Posters, and Commercial Advertising The Charter 14 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 language 15. 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 language S Attorney General of Québec v. Hyperinfo Canada Inc., C.Q. Hull, n , J.E (November 1, 2001); Attorney General of Québec v. Waldie-Reid, C.Q. Beauharnois, n , J.E (May 23, 2002), confirmed by the Superior Court, January 30, 2003, n ; Attorney General of Québec v. Produits métalliques C.M.P. Ltée, December 8, 2004, C.Q. Beauharnois, n Attorney General of Québec v. Hyperinfo Canada Inc., ibid. 14 S Regulation defining the scope of the expression markedly predominant for the purposes of the Charter of the French language, c. C-11, r.10.2, S Ibid., S. 2. 3

4 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 motive 17. Business Names Business names in Québec must comply with the Charter 18, which requires that they be in French, and under which it is necessary to have a name in French in order to obtain juridical personality 19. 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 enterprise 20. 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 prominently 21. The Regulation respecting the language of commerce and business 22 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 only 23. 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 Act 24, unless a French version has been registered 25. Seeing that under the 17 Charter, S. 59. As well, Section 23 of the Regulation respecting the language of commerce and business, supra, note 5, stipulates that public signs and posters displayed by a natural person for non-professional and non-commercial purposes may be in the language of the person s choice. 18 An Act respecting the legal publicity of sole proprietorships, partnerships and legal persons, R.S.Q., c. P-45, S. 13, para Charter, SS An Act respecting the legal publicity of sole proprietorships, partnerships and legal persons, supra, note 18, SS. 13(2) and (3). 21 Charter, SS. 68(1). 22 Supra, note 5, S Ibid, SS. 68(3). 24 R.S.C. 1985, c. T Regulation respecting the language of commerce and business, supra, note 5, SS. 7, 13 and 25. 4

5 Canada Trade-marks Act 26, 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 Charter 27. 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 language 29, as well as for conventions, conferences, fairs or exhibitions, intended solely for a specialized or limited public 30. 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 posters 31. 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 public 32. 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 business 33. 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, 26 Supra, note Attorney General (Québec) v. St-Germain Transport (1994) inc., 2006 QCCQ Charter of the French Language and Regulations, Notes explicatives et jurisprudence Office québécois de la langue française, November Regulation respecting the language of commerce and business, supra, note 5, SS. 2, 11 and Ibid., SS. 12 and Ibid., SS. 9, 14 and Charter, SS Ibid., SS

6 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 persons 34. The person may also be ordered to remove or destroy non-compliant signs, ads, billboards, etc. 35 Geneviève Bergeron Réa Hawi Ext.2833 gbergeron@blgcanada.com rhawi@blgcanada.com 34 Ibid., S Ibid., S Borden Ladner Gervais LLP Lawyers Patent & Trademark Agents C a l g a r y 1000 Canterra Tower 400 Third Avenue S.W. Calgary, Alberta, Canada T2P 4H2 tel: fax: M o n t r é a l 1000 de La Gauchetière Street West Suite 900, Montréal, Québec, Canada H3B 5H4 tel: fax: O t t a w a World Exchange Plaza 100 Queen St., Suite 1100 Ottawa, Ontario, Canada K1P 1J9 tel: legal fax: IP fax: Regional Leaders: Ottawa Mary Jane Lemenchick Waterloo Region Neil Henderson ext. 232 Calgary Michael R. Whitt, Q.C To r o n t o Scotia Plaza, 40 King Street West Toronto, Ontario, Canada M5H 3Y4 tel: fax: mlemenchick@blgcanada.com Toronto Colleen Spring Zimmerman cspringzimmerman@blgcanada.com nhenderson@blgcanada.com Montreal Lise Bertrand lbertrand@blgcanada.com mwhitt@blgcanada.com Vancouver Doug G. Copland dcopland@blgcanada.com V a n c o u v e r 1200 Waterfront Centre 200 Burrard Street, P.O. Box Vancouver, British Columbia, Canada V7X 1T2 tel: fax: This newsletter is prepared as a service for our clients and other persons dealing with intellectual property issues. It is not intended to be a complete statement of the law or an opinion on any subject. Although we endeavour to ensure its accuracy, no one should act upon it without a thorough examination of the law after the facts of a specific situation are considered. No part of this publication may be reproduced without prior written permission of Borden Ladner Gervais LLP. This newsletter has been sent to you courtesy of Borden Ladner Gervais LLP. We respect your privacy, and wish to point out that our privacy policy relative to newsletters may be found at If you have received this newsletter in error, or if you do not wish to receive further newsletters, you may ask to have your contact information removed from our mailing lists by phoning BLG-LAW1 or by ing subscriptions@blgcanada.com Borden Ladner Gervais LLP W a t e r l o o R e g i o n Waterloo City Centre 100 Regina Street South, Suite 220 Waterloo, Ontario, Canada N2J 4P9 tel: fax: IP fax: Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership Printed in Canada