In a recent decision,1 the Court of Quebec reiterated the requirement under Quebec's Charter of the French Language (the "Charter") that French language signage be "markedly predominant" and confirmed that both registered and unregistered trademarks may appear exclusively in another language in inscriptions on products, in catalogues, brochures, folders, commercial directories and similar publications (including websites), and in public signs and posters and commercial advertising.
Facts
A number of small businesses operating mostly in English in the Montreal area were charged with various violations of the Charter. More specifically, the Anglophone merchants were charged with having installed signs in a language other than French or on which French was not "markedly predominant", having sold products with non-French labelling and having advertised online exclusively in English.
Decision
All merchants were found guilty as charged, save for one, which
used a trademark exempt slogan. The following are the most salient
points that can be gleaned from the decision.
How Predominant is "Markedly
Predominant"?
Section 58 of the Charter allows the use of a language other than
French on commercial signs on the condition that French remains
"markedly predominant". A number of defendants argued
that placing the French inscription first on the sign ought to be
sufficient to achieve "marked predominance".
The Court of Quebec rejected the argument that simple priority in
the placement of French text on a sign could satisfy the rule and
confirmed the mathematical requirement set out in the Charter
regulations. The Court found that "marked predominance refers
to the greater visual impact of the French language when compared
to the other language included on a sign". As the judge put
it, "size does matter" for commercial signage; the 2:1
ratio between the size of the French inscription and the English
inscription provided under the regulations satisfies the
requirement of "marked predominance".
Protection of Unregistered Trademarks
Two of the defendants also invoked an exemption to the rule found
under s. 58 of the Charter. Pursuant to s. 25(4) of the
Regulation respecting the language of commerce and
business, a trademark recognized as such under the federal
Trade Marks Act used on a commercial sign avoids the
requirement of "marked predominance", provided that no
registered French version exists.
One of the defendants, "Meldrum the Mover", successfully
argued that its slogan, "Everything inside packed with
pride", was not merely a description of the services, but a
distinctive and recognizable slogan. Considering that this
slogan had been in use for a very long time (since 1930), the
Court found that it qualified as a common law trademark. The judge
held that such a trademark could be considered as
"recognized" for the purposes of the exemption,
notwithstanding the fact that it was not registered.
Signs out of Public View
Interestingly, the Court questioned the Attorney General's
zeal, as the defendant's truck bearing the impugned slogan was
no longer in service, parked out of public view and was kept for
spare parts. On that point, the Court concluded that
"linguistic landscape of the province cannot be affected by a
slogan that appears on a truck that was rusting away on a yard that
was inaccessible to the general public." The judge made the
general observation that the s. 58 requirement does not encompass
signs that are not intended for the public view.
Constitutional Issues
The defendants also challenged the offences on constitutional
grounds. With respect to English-only websites, the defendants
argued that the Province of Quebec did not have jurisdiction to
regulate the internet, as it falls under exclusive federal
jurisdiction by virtue of its residual power. This argument was set
aside by the judge, who concluded that the purpose of the Charter
and the regulation is to regulate commerce, which falls under
provincial jurisdiction.
Finally, and perhaps most importantly, the argument was made, yet
again and probably not for the last time, that the Charter violates
fundamental rights contained in the Canadian Charter of Human
Rights and Freedoms, namely the rights to equality and liberty
and freedom of speech.
On this issue, the judge found no reason to deviate from the
previous teachings of the Supreme Court2 that the
preservation of the French language is an important objective that
can justify some limits on these rights and freedoms, such as
imposing that French be "markedly predominant" on
commercial signage. The Court further concluded that there was no
convincing demographic or sociologic evidence supporting the view
that the French language has lost its vulnerability since the
decision of the Supreme Court in 1988.
The issues raised in this decision are sure to remain a hot topic
in the coming years, especially with the Quebec government's
appeal of a recent decision3 rendered by the Quebec
Superior Court going against the OQLF's policy to impose a
French descriptor to store names, even where such names are
trademarks.
Footnotes
1 Quebec (Attorney General) v. 156158 Canada Inc. (Boulangerie
Maxie's), 2015 QCCQ 354.
2 Ford v. Quebec (Attorney General), [1988] 2
SCR 712 and Devine v. Quebec (Attorney General), [1988] 2
SCR 790..
3 Magasins Best Buy ltée v. Québec (Procureur
général), 2014 QCCS 1427.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2015