Transforming your trade-marks into French for public signs: An obligation?

November 2011

Transforming your trade-marks into French for public signs: An obligation?

Stéphanie Thurber
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514 878-3247 

Since Fall 2011, the Office Québécois de la langue française (“OQLF”), which has the mandate to enforce the Charter of the French Language (“Charter”), has launched a francization campaign to push merchants to increase their compliance with the Charter’s provisions in their public signage.
 
The purpose of this article is not to debate the validity of the OQLF’s interpretation of the Charter, but to inform you about this new campaign and its implications for businesses operating in Quebec.
 
The OQLF now requires that there be at least a French generic term in public signage when the registered trade-mark is in a language other than French. Public signage means any message (including the name) displayed on a sign, a notice or a display window, even if it is temporary, addressed to the public, regardless of whether it is placed inside or outside an establishment. The OQLF applies Section 58 of the Charter, which states that public signage and commercial advertising may be in French and in another language, provided that the French is clearly predominant. Similarly, Section 63 of the Charter provides that the name of a business must be in French.
 
However, Section 25(4) of the Regulation respecting the language of commerce and business (“Regulation”) specifically provides that a recognized trade-mark within the meaning of the Trade-marks Act (Canada) may appear exclusively in a language other than French in its public signage and commercial advertising, unless a French version of the trade-mark has been registered. This provision had the objective of encouraging international companies to set up business in Quebec. Section 25(4) of the Regulation is therefore an exception to the Charter provisions requiring that the trade-mark be displayed in French, since it may be written in a language other than French. In 2008, the OQLF already interpreted such Section restrictively by only recognizing the application of this exception to trade-marks duly registered in Canada. Although the OQLF cannot oblige businesses to translate their registered trade-mark, it has the power, under the Charter, to require the addition of a French generic term in the merchants’ public signage. The OQLF considers the trade-mark in a publicized business name to be the specific term (distinctive part) which must be used with a French generic term according to Section 27 of the Regulation.
 
After a complaint is received, an OQLF investigator will investigate the grounds for the complaint. If the investigator concludes that there has been a violation of the Charter or its regulations, the OQLF will send the merchant a letter notifying him of its obligation to comply with the Charter. This will be followed by a notice of default if the situation is not remedied. The Charter contains penal provisions and other sanctions against persons who contravene the Charter or its regulations. A merchant who does not comply with the Charter is liable to fines ranging from id="mce_marker",500 to over $20,000. The applicable fines are doubled for a repeated offence.

The OQLF even goes as far as publishing on its website a list of businesses who are not complying with the francization process. Merchants are therefore encouraged to comply with the requirements of the Charter. The OQLF also offers a subsidy program for businesses that must modify their signage to comply with the provisions of the Charter. This program is to assist businesses with between 5 and 99 employees in their francization compliance measures. This financial support is available to businesses who submit an application under the program, using the government form, and who must sign a francization agreement with the OQLF. The OQLF’s financial contribution can cover a maximum of 75% of eligible expenses, up to a limit of $50,000 per business. The eligible expenses (before taxes) are essentially the following: the costs of design, production and installation for permanent correction of the public display of the name or any commercial message on a public sign, on a commercial vehicle or in a display window, and the costs to translate brochures and pamphlets intended for customers with a view to promoting products or services sold by the merchant in Quebec. Periodical advertising circulars are excluded. The francization project must be carried out within 12 months following the date of the OQLF’s approval of the project.
 
Any person doing business or planning to do so in Quebec should consider the Charter and its regulations. They establish the language requirements for doing business in Quebec, and these requirements are not negligible. They have major implications in the language of work and commerce as well as in publications and public signage, including the uniform presentation of trade-marks and websites of businesses. Finally, a merchant who wants to make a good impression with Quebec consumers will find it advantageous to comply with the Charter.

This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.

 

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