On January 10, 2024, the Quebec government released the long-awaited draft Regulation to amend mainly the Regulation respecting the language of commerce and business (the Regulation). It amends the current Regulation respecting the language of commerce and business and abolishes the Regulation defining the scope of the expression "markedly predominant" for the purposes of the Charter of the French Language.
While some uncertainty lingers, the Regulation complements and provides valuable guidance on recent Charter of the French Language amendments introduced by Bill 96, An Act respecting French, the official and common language of Québec (Bill 96). Specifically, it grants a favourable 2-year extension for compliance to products manufactured prior to June 1, 2025, defines the meaning of the term "generic term or a description of the product" contained within a registered trademark, and broadens the definition of a "registered trademark" for product packaging to encompass pending registration applications at the Canadian Intellectual Property Office.
It's important to note that the Regulation is currently subject to a 45-day consultation period and may therefore undergo revisions.
At present, the key highlights to consider are as follows:
Non-French trademarks appearing on products and the container, wrapping or documents supplied with it
Bill 96 amends the rules governing the use of non-French trademarks on products, providing that as of June 1, 2025:
- Only "registered" trademarks (for which no French version of the trademark appears on the Register of Trademarks) may appear in whole or in part in a language other than French "on a product."
- If a registered trademark exempt from translation appearing "on a product" includes a non-French "generic term or a description of the product," this generic term or description will have to appear in French elsewhere on the product or a support permanently affixed to it.
The Regulation provides the following clarifications regarding these new rules:
- Clarifying that in this context, the term "a product" encompasses its container, wrapping and any document or object supplied with it – This clarification resolves the ambiguity stemming from the legislator's use of "a product" in Bill 96, which initially omitted any reference to packaging, containers or associated documents/objects.
- Clarifying that a pending application is adequate to qualify for the "registered trademark" exemption – A trademark with a pending registration application at the Canadian Intellectual Property Office will be considered as a registered trademark from the application's filing date. This allows for the promotion and marketing of new products or those featuring new non-French trademarks in Quebec before obtaining the official trademark registration. This will notably be beneficial in light of current examination delays at the Trademarks Office. We note, however, that the scope of the "registered trademark" exemption was not similarly broadened with regards to trademarks on signage or commercial advertising.
- Introducing a compliance grace period – Until June 1, 2027, products not meeting the new requirements can still be distributed, retailed, leased, offered for sale or lease or otherwise offered on the market, provided that: (a) they were manufactured prior to June 1, 2025; and (b) no French version of the trademark was registered on the date of the Regulation's publication. This provides reassurance for businesses with products expected to remain in stores after June 2025, despite having launched well before that date.
- Defining the parameters of "generic term or a description of the product", by providing that:
- A "description" encompasses one or more words describing a product's "characteristics."
- A "generic term" refers to one or more words describing "the nature of a product."
- Clarifying that no generic term or product description included in a non-French trademark may be given greater prominence than that in French or be available on more favourable terms. While this suggests that a non-French generic term or description could be equally visible as its French translation, the phrase "or be available on more favourable terms" remains ambiguous.
Bill 96 strengthens several existing Charter provisions related to the use of French on public signage and posters. The Regulation delves into the specifics of these heightened requirements, amending previous provisions in the Regulation respecting the language of commerce and business concerning signage.
Here's a summary:
The "markedly predominant" requirement
The Charter has long mandated that, in cases where public signage and posters feature both French and another language, the French version must be "markedly predominant." Previously, a separate regulation defined the term "markedly predominant," which varied depending on the presentation of signs or posters. Under the Regulation, this specific regulation is repealed, and the definition will be incorporated into the Regulation respecting the language of commerce and business.
Under the 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 when the following conditions are met in the same visual field:
- The French text is at least twice as large as the text in the other language.
- The legibility and permanent visibility of the French text are equivalent to those of the text in another language.
While the first criterion existed previously, with French text required to be at least twice as large, the second criterion is new. Although the Regulation does not detail the exact requirements, we may reasonably conclude that this will necessitate the French text to appear in a font size, colour, etc., at least as legible as the text in the other language, and to benefit from any illumination, etc. used on the non-French text.
The Regulation specifies that, for the purposes of the assessments above, the following are not to be considered:
- When evaluating the marked predominance of French: The French text indicating business hours, telephone numbers, addresses, numbers, percentages or definite, indefinite or partitive articles.
- When assessing the visual impact, the following, where their presence is specifically allowed: (a) a family name or a place name; (b) a trademark, except one on a public sign or poster visible from outside premises and written, even partially, in a language other than French; and (c) other terms in a language other than French.
Non-French trademarks and enterprise names appearing on public signage visible from outside premises
Bill 96 amends the requirements governing the use of non-French trademarks on public signage and commercial advertising.
In 2016, the Quebec Government amended the Regulation respecting the language of commerce and business in order to require businesses that display a trademark "only in a language other than French" "outside an immovable" to add a "sufficient presence of French" – i.e. a French slogan, generic term or other descriptor of the products or services offered.
Bill 96 amends this rule, replacing the "sufficient presence of French" criterion with a requirement that the French text accompanying the non-French trademark be "markedly predominant" as compared to the non-French trademark.
The Regulation provides that in order to ensure that French is markedly predominant on public signs and posters that are visible from outside premises and include a non-French trademark or non-French enterprise name, terms in French must be added, as is currently required, such as:
- A generic term.
- A description of the products or services concerned.
- A slogan.
The Regulation further provides that for the purposes of this requirement, a "generic term" and "description" both have the meanings stated above with regards to product packaging.
However, the current draft lacks clarity, as it is uncertain whether the inclusion of additional French terms mentioned above might:
- Constitute an alternative interpretation for the "markedly predominant" requirement. If so, this could imply that while signage visible from outside premises displaying a non-French trademark or enterprise name must incorporate additional French terms, these additional terms may not necessarily need to be larger than the non-French trademark or enterprise name.
- Represent a supplementary condition in addition to those outlined in the draft Regulation that the French text adhere to the size, legibility and visibility standards detailed below. Notably, based on the Regulation's wording, it is unclear whether the French generic term, description of the products or services concerned or a slogan must necessarily be at least twice as large as the non-French trademark or eterprise name it accompanies.
We hope that the Regulator will eventually provide clarification on this point in due course.
As per Bill 96, "contracts of adhesion and related documents" must be in French. A non-French version may only bind the parties to such a contract if, after being provided with a French version of the agreement, it is their express wish to do so. In such cases, documents related to the contract may be exclusively in such other language.
Accordingly, merely signing an English version of an adhesion contract containing a choice of language clause is no longer sufficient. Instead, the French version of the agreement must be remitted to the adhering party.
While the application of this rule is fairly straightforward where the parties are contracting face-to-face, it is less clear how businesses can comply with this requirement when contracting online or by phone. In an aim to resolve this ambiguity, the Regulation states the following:
- Where the contract is concluded by telephone, the requirement to issue a French version is met where the adhering party has stated its express wish to contract in a language other than French. Provided that: (a) "the adhering party had an opportunity to consult the applicable standard clauses in French using a technological means"; or (b) "the contract is to take effect immediately and the adhering party does not have the technological means to access the applicable standard clauses in the contract."
- Where the contract is concluded online, the requirement to issue a French version is met "by giving the adhering party the applicable standard clauses in French."
With regards to contracts concluded by telephone, the above appears to indicate that making the "applicable standard clauses" available to the adhering party, rather than actually having to actively provide a copy, will suffice. This will likely be a welcome development by parties who enter into adhesion contracts by telephone, as it will no doubt relieve their administrative burden.
Concerning contracts finalized online, the situation is somewhat less transparent. For instance, the Regulation does not clarify whether the "applicable standard clauses" may be provided by email concurrently with the non-French version of the contract or if they must be presented on-screen before the agreement is finalized.
We note that written comments regarding the Regulation may be submitted to the Minister of the French Language until February 24, 2024, after which the Regulation will be adopted.
The majority of the provisions of the draft Regulation are set to come into force on June 1, 2025. Some provisions, however, including notably those pertaining to adhesion contracts, are set to come into force fifteen days after the publication of the final version of the Regulation in the Gazette officielle du Québec.
As noted above, a public consultation period is presently underway and will continue until February 24, 2024. Those interested in providing comments to the Minister or discussing the potential impact of Bill 96 and its Regulation on their business are invited to contact Gowling WLG's Advertising and Product Regulatory as well as Trademark teams.
Stay tuned for our forthcoming articles as we unpack the provisions of the Regulation and discuss compliance options.
For more on Bill 96, An Act respecting French, the official and common language of Québec, check out our previous articles, below: