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 labeling cannot be in English only. Labeling 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,” labeling on prepackaged products must be bilingual, subject to certain exemptions, under the Canada Consumer Packaging and Labelling Act (R.S.C. 1985, c. C-38) and regulations (C.R.C., c. 417). In addition, French must be predominant in many instances in Québec, in accordance with the Charter of the French Language (R.S.Q., c. C-11).
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, labeling 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 trademarks are part of these exceptions. As we will see, there is no legal obligation to have specific French trademarks. In other words, BLOCKBUSTER can lawfully do business under and use its trademark without having to translate it into something like SUPERPRODUCTION!
It should be noted that the exemptions provided for under the Charter and the 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 Section 51 of the Charter, 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 by one or more translations; however, the translations may not be given greater prominence than the text in French (Regulation respecting the language of commerce and business, c. C-11, r.9.01).
There are of course exceptions to this requirement such as for cultural or educational products (books, magazines, disks) whose content is only in a language other than French. Also, an inscription on a product may be exclusively in a language other than French, such as in the following cases:
1. The product is from outside Québec, has not yet been marketed in Québec and is being exhibited at a convention, conference, fair or exhibition;
2. 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
3. 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.
Nevertheless, inscriptions concerning safety must be written in French and appear on the product or accompany it in a permanent manner.
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 favorable terms on the Québec market.
Finally, there is an exception for the list of the ingredients of a “cosmetic,” as defined by the Canada Food and Drugs Act (R.S.C. 1985, c. F-27), which can be listed only by their INCI (International Nomenclature Cosmetic Ingredient) name (the name assigned to an ingredient in the International Cosmetic Ingredient Dictionary and Handbook).
Commercial Publications and Websites
Section 52 of the Charter 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 the material presentation of the French version is available under no less favorable 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 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, 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 in Québec products that are advertised or sold through a corporate website must provide a French-language translation of its website. The website’s server location and the country code or top-level domain name are not relevant criteria for deciding whether 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.
Public Signs, Posters and Commercial Advertising
Section 58 of the Charter states that public signs, posters and commercial advertising must be in French. Another language may be added provided French is “markedly predominant,” meaning that the French text is to have a much greater visual impact than the text in the other language (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. 1).
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.
It is to be noted that under Section 59 of the Charter 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. Also, Section 23 of the regulation respecting the language of commerce and business 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.
Business names in Québec must comply with the Charter, 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 (Charter Sections 63-64). 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. Nevertheless, the name of an enterprise may be accompanied with a version in a language other than French provided, when it is used, the French version of the name appears at least as prominently.
An expression taken from a language other than French may appear in a business name, provided 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.
Standard Exemptions and Trademark Rights
On the whole, the following may appear exclusively in a language other than French, whether it is with regard to labeling, commercial publications, public signs and posters or advertising: (1) the name of a firm established exclusively outside Québec; (2) the name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto or any other non-commercial motto; (3) 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, most important (4) a recognized trademark within the meaning of the Trade-marks Act, unless a French version has been registered. Under the Trade-marks Act, a mark need not specifically be registered in order to be recognized. Therefore, proof of the use of an unregistered trademark in association with products or services for a certain time could be sufficient to establish rights in the trademark, thereby qualifying for this exemption under the Charter.
The Office québécois de la langue française, a government body that administers and ensures compliance with the Charter, makes the following comments regarding the use of trademarks 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: 1) the mark cannot be translated; or 2) the mark is such that the French version of which would have no commercial value.” [Authors’ translation]. Therefore, when a trademark is registered in French, the exception does not apply. Only trademarks that are not translated into French can be used on packaging, commercial publications or advertising.
A similar exemption is provided for cultural or educational products or activities. To qualify, the content of the product or activity must be in the other language, and the vehicle used must be a news medium that publishes or broadcasts in that other language. Exemptions also apply to conventions, conferences, fairs or exhibitions that are intended solely for a specialized or limited public.
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.
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. 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. In practice, however, the Office usually undertakes an inspection or inquiry only 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 or her 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, 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 offense, 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. The person may also be ordered to remove or destroy non-compliant signs, ads, billboards, etc.
Although every effort has been made to verify the accuracy of items carried in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.