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What proposed changes to Quebec抯 language laws means for franchise brandsWednesday, May 18, 2016 > 09:54:36
In a baffling move to dissuade as many companies as possible from carrying on business in Quebec, the provincial Office québecois de la langue française (OQLF) recently announced proposed amendments to its language laws which, if enacted, could result in huge costs for brands.
While scaring away business is not the intention of the OQLF, these laws may cause companies to think twice about the costs of compliance.
As currently drafted, the regulation respecting the language of commerce and business, enacted pursuant to the Charter of the French Language, requires all signage and commercial advertisements for businesses operating within Quebec to be in French. However, if a business has a trademark that is registered with the Canadian Intellectual Property Office only in English, then that trademark is permitted to be displayed without a French equivalent or translation. Many trademark lawyers counsel businesses to register their brand in English only, so that this exception may be relied upon.
The OQLF has historically resisted interpreting the English-trademark exception and has taken very public enforcement actions against businesses it deemed to be non-compliant. A well-known example of the OQLF’s rigorous enforcement activities involved the levying of a fine on an Italian restaurant for not displaying French translations of menu items, notwithstanding that many of the Italian words contained on the menu could not be translated.
The OQLF also tried to enforce an interpretation of the legislation against businesses seeking to rely on the English-trademark exemption by requiring the company to include a generic or descriptive term of the business in French, for example, adding “magasin de vêtements” to signage for a clothing store). This interpretation of the Charter was successfully challenged by a group of big-box retailers in the Quebec Court of Appeal, and retailers relying on English trademarks did not have to add the generic French term.
Now, a year later, the provincial government has proposed amendments to the legislation which, if passed, would require businesses displaying trademarks in a language other than French to also have a “sufficient presence of French” outside their stores.
This could be accomplished by displaying a generic French description of the goods or services (e.g., “magasin de réparation à domicile” for a home repair store) adding a French tagline or employing any other French term that is customer-facing and accomplishes the objective (e.g., “vente sur les produits de cuisine” for a sale on all kitchen products).
Further, retailers would also be required to display, design and light the French terms as prominently as the English trademark. This includes size and visibility — the draft amendments to the regulation give the example of being able to view both the French and non-French displays from street-level or from the highway. If a passerby can see the non-French display, they must also be able to see the French.
The good news (if there is any) is that these obligations are slightly less restrictive than what the OQLF attempted to impose because retailers have more flexibility with respect to what is displayed in French, as opposed to having to strictly translate the trademark. But the good news ends there.
The amendments are currently open to public consultation until June 18, following which a final version of the new law will be enacted. Whatever the decision, brands which already have a presence in Quebec will be given three-years grace to comply, while businesses opening in Quebec for the first time will have to comply immediately.
In any case, the costs of compliance with these new requirements are likely to be très expensive.