On January 10, 2024, the Government of Québec published the draft Regulation to amend mainly the Regulation respecting the language of commerce and business [available only in French] ("Draft Regulation") in the Gazette officielle du Québec. In particular, the Draft Regulation seeks to:
- align the Regulation respecting the language of commerce and business1 and the Charter of the French Language2 ("Charter"), as amended by Bill 963;
- specify certain circumstances in which a product inscription may be written exclusively in a language other than French;
- establish rules for trademarks and business names on public signs;
- facilitate the implementation of the Charter, in particular regarding product inscriptions, public signage, and contracts of adhesion.
We encourage you to consult our annotated version of the Draft Regulation.
Bearing in mind that some of the amendments to the Charter, particularly those relating to trademarks, left a number of questions unanswered, the legal and business communities were eagerly awaiting this draft regulation.
Bill 96 significantly narrowed the exception to use a non-French trademark on products and public signs and in commercial advertising, without having to be translated into French.4 As of June 1, 2025, a non-French trademark will have to be registered in order to appear on any product, public signage or commercial advertising without a French translation. Moreover, on exterior public signs, such a registered non-French mark will also have to be accompanied by French text within the same visual field, and the French text will have to be "markedly predominant" vis-à-vis the non-French trademark.
The following sections highlight the key takeaways and shed light on the above-mentioned amendments:
1. Product Inscriptions
Definition of "Registered Trademark" is Broadened
Under the amended Charter, the exception to use a non-French trademark on products is restricted to registered trademarks within the meaning of the Trademarks Act ("TMA").5
This amendment drew strong reactions from the business community. Many were worried that they would not be able to comply with the Charter before the coming into force of this provision on June 1, 2025, due to long registration delays with the Canadian Intellectual Property Office ("CIPO").
However, the Draft Regulation now broadens the scope of the term "registered trademark" to include an applied-for trademark, the application for which is pending as of the filing date.
As such, a company will be able to use a non-French trademark on a product and its packaging, whether that mark is pending registration or is registered.6
Broadening the scope of the "registered trademark" exception in this manner will certainly provide companies more flexibility to comply with the Charter before and after June 1, 2025.
Definition of "Generic Term" or "Description"
The Charter provides that when a non-French trademark appearing on a product includes a generic term or description of the product, such terms must appear in French on the product or on a medium permanently attached to the product. This provision raised many questions in the legal community with regard to the definition and interpretation of these terms.
The Draft Regulation proposes defining the terms "description" and "generic term" as follows:
- a description refers to one or more words describing the characteristics of a product;
- a generic term refers to one or more words describing the nature of a product.
Although helpful, it remains to be seen how these definitions will be interpreted and applied by the Office québécois de la langue française (OQLF).
In addition, the Draft Regulation specifies that no generic term or description included in a non-French trademark may be given greater prominence than that in French or be available on more favourable terms.7
Inscriptions Using "Integrated Software"
Whereas the Charter broadly defines the concept of a "product inscription" (to include inscriptions on the product's container or packaging, or on any document or object included with that product, directions for use and warranty certificates)8, the Draft Regulation expands the notion of a "product inscription" to also include inscriptions displayed to a user using an integrated (aka embedded) software.9 Consider, for example, a mobile app to control a household appliance, car, or medical device.10 This is now provided for despite the exception allowing to market software in Québec exclusively in a language other than French as long as no French version of the software already exists.11 In other words, it appears that where a software controls a product or is integral to its functioning, it must be made available in French, subject to any other exceptions provided by regulation.
We furthermore note that according to guidance documents published by the OQLF, when software is available exclusively in a language other than French, the software packaging and accompanying documentation must nonetheless be in French or multilingual.
June 1, 2027 Grace Period
Lastly, the Draft Regulation provides a grace period within which businesses may dispose of non-compliant products.12 Businesses will have until June 1, 2027 to distribute, sell or lease non-compliant products manufactured before June 1, 2025. However, products manufactured after June 1, 2025 will have to be compliant.
2. Public Signage and Commercial Advertising
Definition of "Registered Trademark" Remains the Same
The Charter as amended provides that the exception to use a non-French trademark on public signs and in commercial advertising without French translation applies only to registered trademarks as defined in the TMA.13 While the Draft Regulation proposes to broaden the scope of the term "registered trademark" with respect to product inscriptions, it does not do so with respect to public signs and commercial advertising.
Thus, on public signs and commercial advertising, the definition of "registered trademark" remains that provided in the TMA, i.e., a registered mark. In order for a trademark in a language other than French to appear on public signs and in commercial advertising without being translated into French, the trademark will have to be registered.
At this stage, the Draft Regulation will be subject to comments by all interested persons. It will therefore be interesting to see whether the definition of "registered trademark" in respect of public signs and commercial advertising is amended before the Draft Regulation is passed.
"Marked Predominance" of French
The Charter introduced new restrictions regarding exterior public signs: even if a trademark is registered within the meaning of the TMA, on exterior public signs, such a trademark must be accompanied by French terms in the same visual field that are markedly predominant. The Draft Regulation now provides that the "markedly predominant" criterion is met where "the text in French has a much greater visual impact than the text in the other language". In doing so, the Draft Regulation proposes to repeal the Charter regulation dealing with the definition of the term "markedly predominant," and to instead define it in the Regulation respecting the language of commerce and business.
Indeed, the Draft Regulation introduces the concept of "much greater" and specifies that a text written in French must be at least twice as large as that written in another language and that its legibility and permanent visibility must be at least equivalent to that written in such another language.
For example, in order to comply with the Charter and the Draft Regulation, a registered trademark in the English language on an exterior public sign must be accompanied by a generic or descriptive term or a slogan in French that is twice as large and has the same level of lighting and legibility as the English trademark.
In assessing the marked predominance of French, business hours, telephone numbers, addresses, numbers, percentages and definite, indefinite or partitive articles written in French shall not be considered.
3. Commercial Documents
In its current form, the Regulation provides that a recognized trademark within the meaning of the TMA that is written in a language other than French does not have to be translated in order to appear on commercial documents (catalogues, brochures, folders, business directories, order forms and any other similar document, including on websites and social media), as long as a French version of the trademark has not been registered. The term "recognized trademark" has been interpreted to include trademarks registered in Canada as well as common law trademarks.
Surprisingly, the Draft Regulation does not amend this exception. As such, an unregistered trademark in a language other than French could find its way into commercial publications without a French translation.
It should be noted that the Draft Regulation incorporates information published on websites and posted on social media into the concept of "commercial documents", thereby officializing how the OQLF has interpreted the concept for a number of years now.
4. Adhesion Contracts
Bill 96 tightened the rules applicable to contracts of adhesion, namely contracts whose essential terms are drafted by one party and are non-negotiable.14
As of June 1, 2023, the party drafting a contract of adhesion must provide the French version to the adhering party before the parties can decide to be bound by the version in a language other than French (in other words, adding a standard clause whereby the parties agree to draft the agreement in English is no longer sufficient).15 Without doing so, no party may send the other party a document related to that contract written in a language other than French. Where this rule is violated, the provisions of the contract may be invoked against the drafter of the contract and the adhering party may demand the nullity of the contract without having to prove that it has suffered harm.16
The Draft Regulation specifies that a "document related" to a contract of adhesion includes a document:
- attesting to the existence of the contract, such as an insurance certificate;
- whose attachment to the contract is required by law, such as a resiliation or resolution form; and
- that otherwise constitutes an ancillary document.17
Additionally, when a contract of adhesion is entered into by telephone, the Draft Regulation provides that the adhering party must have had an opportunity to consult the applicable standard clauses in French using technological means, or that the contract is to take effect immediately, and that the adhering party does not have the technological means to access the applicable standard clauses in the contract, which might be difficult to apply in practice.
Lastly, the obligation to issue a French version of a contract of adhesion entered into using technological means is met by giving the adhering party the applicable standard clauses in French.18 In a document obtained under an access to information request [available only in French], the OQLF appears to suggest that this obligation would be satisfied by making available the French version of a website (which terms and conditions of use would constitute a contract of adhesion, for example).
Conclusion
While this Draft Regulation addresses some questions that have remained unanswered since the amendment of the Charter in 2022, some issues relating to the constitutional validity of the Charter as amended remain. In fact, some have raised the possibility of a constitutional challenge based on the division of powers, particularly with respect to the validity of provisions relating to the use of trademarks that might encroach on the federal jurisdiction over trademark matters.
Lastly, it should be noted that the Draft Regulation could be amended before finally being passed. In this regard, interested persons may submit their comments to the Ministère de la Langue française by February 26, 2024. Our team is available to help draft comments. We encourage you to stay informed and watch for our future publications on this topic.
Footnotes
1 CQLR c C-11, r 9.
2 CQLR c C-11.
3 An Act respecting French, the official and common language of Québec, SQ 2022 c 14 ("Bill 96"). For all amendments to the Charter, see our annotated version.
4 Ibid, ss 51.1 and 58.1.
5 Ibid, s 51.1; Trademarks Act, RSC 1985, c T-13, s 2.
6 Note that the exception applies only where no French-language version of the trademark has been registered.
7 Draft Regulation, s 9.
8 Ibid, s 51.
9 Draft Regulation, s 9 (which will become s 27.1 of the Regulation).
10 OQLF, "système embarqué", available online.
11 Charter, supra note 2, s 52.1.
12 Charter, s 51.1; Draft Regulation, s 10.
13 Charter, s 58.1.
14 Civil Code of Québec, CQLR c CCQ-1991, art. 1379.
15 Charter, supra note 2 s 55.
16 Ibid, ss 204.23 and 204.21.
17 Draft Regulation, s 9 (which will become s 27.6 of the Regulation).
18 Ibid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
