On June 26, 2024, the Québec government published its highly anticipated final version of the Regulation to amend mainly the Regulation respecting the language of commerce and business ("Final Regulation"). While many had hoped for a delayed coming into force, the Final Regulation is set to come into force on June 1, 2025 (except for the new section 27.3 on contracts of adhesion, which is slated to come into force on July 11, 2024 – i.e. 15 days after the publication of the Final Regulation).
For ease of reference, please view our Gowling WLG annotated version of the Regulation respecting the language of commerce and business, as amended by the Final Regulation.
While the vast majority of the proposed amendments published in January's draft version of the Regulation have been maintained in the Final Regulation, there are a few notable take-aways.
Two-year compliance grace period extended to account for new federal labelling laws
In addition to maintaining the two-year compliance grace period for products manufactured prior to June 1, 2025 which do not comply with section 51.1 of the Charter (provided no French-language version of the product's "recognized" trademark within the meaning of the Trademarks Act was registered as of June 26, 2024), the Final Regulation further extends this compliance grace period to:
- Products manufactured between June 1, 2025 and December 31, 2025 that are subject to the new labelling standards provided by the Regulations Amending the Food and Drug Regulations (Nutrition Symbols, Other Labelling Provisions, Vitamin D and Hydrogenated Fats or Oils) or the Regulations Amending the Food and Drug Regulations and the Cannabis Regulations.
Please see here for additional information regarding the new Federal labelling regulations.
Proposed exception for "pending" trademark application retracted; Concept of "recognized" trademarks re-introduced
While the initial version of the Regulation proposed to broaden the scope of the "registered" trademark exception for product packaging and labelling to include a "pending" registration application at the Canadian Intellectual Property Office, the Final Regulation no longer provides an exception for "pending" trademark applications.
Instead, the Final Regulation has re-introduced the concept of a "recognized" trademark within the meaning of the Trademarks Act for which no corresponding French version has been registered. Historically, there has been some uncertainty surrounding what constitutes a "recognized" trademark under the Regulation. The courts have interpreted the "recognized trademark" exception as applying to both registered and non-registered trademarks protected by the federal Trademarks Act. On the other hand, the OQLF had historically maintained that for a mark to benefit from the "recognized trademark" exception, the mark must be registered.
However, the recent decision to re-introduce the concept of a "recognized" trademark in the Final Regulation appears to signal a willingness to also exempt non-registered common law trademarks.
Re-defining the parameters of a "generic term or a description of the product" for product packaging and labelling
By providing that:
- The "name of the enterprise and the name of the product as sold" are excluded from the definitions of a "description" and a "generic term."
- The "designations of origin and distinctive names of a cultural nature" are similarly excluded from the scope of a "description" and a "generic term" for the purposes of Bill 96.
As a result, for product packaging and labelling:
- A "description" encompasses one or more words describing a product's "characteristics," except for "the name of the enterprise and the name of the product as sold" and "designations of origin and distinctive names of a cultural nature."
- A "generic term" refers to one or more words describing "the nature of a product," except for "the name of the enterprise and the name of the product as sold" and "designations of origin and distinctive names of a cultural nature."
Re-defining the parameters of a "generic term or a description of the product" for public signs, posters and commercial advertising
By providing that:
- A "description" encompasses one or more words describing the "characteristics of the relevant products or services."
- A "generic term" refers to one or more words describing "the nature of the relevant products or services."
We note that the above definitions for public signs, posters and commercial advertising no longer have the same meaning as those for product packaging and labelling.
In fact, the carve-outs for the "name of the enterprise and the name of the product as sold" and "designations of origin and distinctive names of a cultural nature" in the definition of "description" and "a generic term" for product packaging and labelling were not similarly extended to the definitions of a "description" and a "generic term" for the purposes of public signs, posters or commercial advertising.
The proposed amendment to the "embossed" exception is repealed – for now
The proposed amendment the exception for inscriptions engraved, baked or inlaid in the product itself, riveted or welded to it or embossed on it, in a permanent manner – which was to be considerably narrowed by requiring the translation of inscriptions that are "necessary for the use of the product" – is notably absent from the Final Regulation.
The proposed amendment to the "embossed" exception will be addressed in a separate amendment. The Minister of the French Language has indicated to the media that they are currently in consultations and considering the best approach to implement the proposed new requirement. A distinct regulation on this matter will follow.
Space occupied by French text on outdoor signage to be at least 2X other languages
Under the Final Regulation, the "markedly predominant" threshold will be met where "the text in French has a much greater visual impact than the text in the other language." The Regulation further specifies that the French text achieves a much greater visual impact if the following conditions are met in the same visual field:
- The "space allotted to the French text is at least twice as large as the space allotted to the text in another language."
- The legibility and permanent visibility of the French text are equivalent to those of the text in another language.
For "dynamic signage" where the English and French text are displayed in alternation (think digital screens), the French text must be "visible at least twice as long as the text in another language" in order to ensure that French has a much greater visual impact.
Next steps
We anticipate that the Office Québécois de la langue française will publish further guidance documents in the coming weeks.
Gowling WLG is monitoring the developments of Bill 96 (including any potential constitutional or other legal challenges) and will provide further updates as these become available.
In light of the significant impact on businesses operating in Québec, we recommend consulting your Gowling WLG Advertising, Marketing and Product Regulatory and Gowling WLG Trademark counsel to discuss the concrete steps to be taken to mitigate risks and ensure compliance
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