Bill 96 and the use of French in advertising in the Province of Québec

On May 24, 2022, the Government of the Province of Québec voted to pass Bill 96, An Act respecting French, the official and common language of Québec.

This controversial language legislation introduces sweeping changes that will affect all aspects of society in the province of Québec, including education, government services, and business. Moreover, the legislation brings about several amendments to the Charter of the French language (the “Charter”) designed to strengthen provisions relating to the use of French as the language of commerce and business in Québec.

Product packaging and labelling and store signage pre-Bill 96

Prior to the passage of Bill 96, the Charter provided an exception to the use of French on product packaging and labelling as well as on public signage and commercial advertising. In particular, owners of “recognized trademarks”, which were interpreted to include marks registered and applied for in Canada as well as common law marks, could display such marks in a language other than French unless a French version had been registered.

The Charter provided a further qualification with respect to outdoor public signs requiring that some French be displayed on the sign to provide consumers with information about the nature of the business. For example, a hardware store operating in Quebec under the trademark “Home Hardware” would require that a French generic term describing the nature of the business appear alongside its trademark on outdoor signage, i.e., “Quincaillerie HOME HARDWARE”.

Amendments introduced by Bill 96

The amendments to the Charter brought about by Bill 96 will see the elimination of the exception for “recognized trademarks” in relation to public signs and posters and in commercial advertising (the exception remains for product labelling and packaging).  In particular, Section 58.1 of the Charter, as amended, provides that a trademark may only be displayed on public signs and posters and in commercial advertising, in a language other than French, “provided that the trademark is registered within the meaning of the Trademarks Act (Revised Statutes of Canada, chapter T-13) (the “TMA”), and no corresponding French version appears in the register kept according to that Act”.

Not only does the foregoing amendment limit the display of non-French marks to marks that are “registered” in Canada, but the exception will only be available if the French version of the mark “does not appear in the register”. This could be interpreted as including any applications of French versions of trademarks that have not yet registered.

In addition, for public signs and posters visible from outside premises, it will no longer be sufficient to include a display of text in French that provides consumers information about the nature of the business. Rather, this display of French text must be “markedly predominant”, which has been interpreted as being twice as large as the non-French text. By way of example, the public sign for a hardware store bearing the trademark “HOME HARDWARE®” would have to include a display of the generic expression “QUINCAILLERIE” in a font size that is at least twice as large than the trademark, as shown in the example below:

QUINCAILLERIE

HOME HARDWARE®

Notably, these changes to the Charter will not come into effect until three years after the coming-into-force date of Bill 96. This is to provide owners of unregistered trademarks in Canada, who previously relied on the “recognized trademark” exception, sufficient time to apply for and register their trademarks in order to claim the exception that is only now available to “registered trademarks”.

Implications for persons doing business in Québec

Parties that display unregistered trademarks on public signs or in commercial advertising in the Province of Québec, in a language other than French, will need to replace such public signs and commercial advertising with versions that comply with the amendments to the Charter brought about by Bill 96. In particular, the public signs and commercial advertising will have to show a French version of their trademark, in a form that is “markedly predominant”, if it appears next to the non-French version of their trademark.

For businesses that have outdoor signage, it will no longer be enough to display French text describing the nature of the business next to the non-French trademark. Rather the French text describing the nature of the business must also be at least twice the size of the non-French trademark.

Owners of unregistered marks who do not wish to adopt and display a French version of their trademark on public signs or in commercial advertising should seek to register their non-French trademark in Canada as soon as possible, considering the delays in registering trademarks before the Canadian Intellectual Property Office.

Finally, while the changes to the Charter brought about by Bill 96 do not affect the use of non-French trademarks on product packaging or labelling (the exception for “recognized trademarks” continues to apply), it remains to be seen whether the current provincial government, which has adopted an aggressive stance with respect to the protection of French, will take further measures to impose similar provisions with respect to packaging and labelling of products manufactured, distributed or sold within the province.

For questions regarding Bill 96 and its impact on trademark owners, or to file applications to register non-French trademarks in Canada, please contact Christopher Dejardin at cdejardin@cassanmaclean.com