On June 26, 2024, the Government of Québec published the Regulation mainly amending the Regulation respecting the language of commerce and business1 (the “Amending Regulation”). This text amends the Regulation respecting the language of commerce and business2 (the “Amended Regulation”) aiming at facilitating the implementation of the Charter of the French Language (the “Charter”)3 and its recent changes. Since its previous publication as a bill last January (the “Draft Regulation”), the Amending Regulation has undergone a few changes, which are outlined below.
Inscriptions on products
- Charter requirements. Generally, all inscriptions on a product, its container, its wrapping, or on documents or objects supplied with the product must be drafted in French4. There are a number of exceptions to this rule, including that a “registered trademark”within the meaning of the Trademarks Act5 (the “TMA”) may be drafted, even partially, exclusively in a language other than French, where no corresponding version in French appears in the register kept according to the TMA6. However, if a generic term or description of a product is included in the trademark, then it must appear in French “on the product or on a medium permanently attached to the product”7.
- Clarifications provided by the Amended Regulation. The Amended Regulation broadens the scope of the exception regarding product inscriptions to “recognized trademarks” within the meaning of the TMA8, thus targeting both registered and unregistered trademarks. This is a change from the Draft Regulation, which only extended the exception to trademarks for which an application was pending in Canada.
The Amended Regulation also specifies that a “generic term” and “description of a product” refer respectively to the nature and characteristics of a product9, excluding the name of the enterprise and the name of the product as sold, designations of origin and distinctive names of a cultural nature10. These exclusions were not included in the Draft Regulation and their scope is not entirely clear, so clarification from the Office québécois de la langue française (“OQLF”) could be beneficial. Also, unlike the Draft Regulation, the Amended Regulation does not specify the visual treatment to be given to the French translation of a generic term or description of a product; this is another uncertainty to which the OQLF may provide clarification in future publications.
Finally, the transitional period until June 1, 2027, introduced by the Draft Regulation to allow businesses to comply with the new product inscriptions requirements, is maintained for products manufactured before June 1, 2025 and insofar as no French version of the recognized trademark within the meaning of the TMA was registered as of June 26, 202411. An additional grace period is provided for products subject to certain labelling rules12.
Public signage and commercial advertising
- Charter requirements. Generally, public signage and commercial advertising in Québec must be in French13. Another language may also be used in addition to French, provided that French is “markedly predominant”14. However, the Charter provides an exception for “registered trademarks” within the meaning of the TMA, so that these may appear, even partially, exclusively in a language other than French, provided that no corresponding version in French appears in the trademark register15. In addition, French must be marked predominantly on public signage and posters visible from outside premises, when a trademark registered under the TMA appears in a language other than French16. This new rule will replace the requirement of “the sufficient presence of French” in public signs of a trademark visible from outside premises.
- Clarifications provided by the Amended Regulation. The Amended Regulation broadens the scope of the exception for public signage and commercial advertising to include “recognized trademarks” within the meaning of the TMA, thus targeting both registered and unregistered trademarks17. The Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language is also repealed. Instead, the Amended Regulation specifies that the “marked predominance of French” requirement is met when the text in French has a much greater visual impact than the text in another language18, in particular when the space allotted to the text in French is at least twice as large as that allotted to the text in the other language.
Commercial publications
- Charter requirements. According to the Charter, any “commercial publication” must be written in French19. A commercial publication may also be written both in French and in another language, provided that the French version is accessible on terms that are at least as favourable20. According to the Charter, the commercial publications covered by these rules include “catalogues, brochures, folders, commercial directories, order forms and any other document of the same nature that is available to the public”21. Unlike product inscriptions as well as public signage and commercial advertising, the Charter does not provide any exception for “registered trademarks” used in these publications.
- Clarifications provided by the Amended Regulation. The original Regulation has not been amended in this regard, so that the exception for “recognized trademarks”within the meaning of the TMA22 continues to apply. In addition, while the Draft Regulation specified that social media and websites were considered to be commercial publications for the purposes of the Charter23, which purpose was to crystallize the OQLF's administrative position on the matter, the Amended Regulation no longer provides for this clarification. It is nonetheless likely that the OQLF will maintain its interpretation, so that social media and websites would remain subject to the provisions of the Charter applicable to commercial publications.
Adhesion contracts
- Charter requirements. Under the new provisions of the Charter, an adhesion contract and its related documents must be drawn up in French24. However, the parties to such a contract may be bound by its version in a language other than French if, “after the French version has been remitted to the adhering party, such is their express wish”25. In such case, the “documents related to the contract” may also be drawn up exclusively in that other language.
- Clarifications provided by the Amended Regulation. The Amended Regulation specifies what constitutes a document “related” to a contract of adhesion. This includes any document: (i) attesting to the existence of the contract, such as an insurance certificate; (ii) required by law to be attached to the contract, such as a termination form; or (iii) otherwise accessory to the contract26. The Amended Regulation also provides for certain presumptions as to the “remittance” of a contract of adhesion where it is concluded by telephone or by technological means27.
The new provisions of the Amended Regulation will come into force on June 1, 2025, with the exception of the provisions relating to contracts of adhesion, which came into force on July 11, 2024.
Footnotes
1. Regulation Amending Principally the Regulation respecting the language of commerce and business, (2024) 26 G.O. II 4364 (the “Amending Regulation”).
2. Regulation respecting the language of commerce and business as amended by the Regulation Amending Principally the Regulation respecting the language of commerce and business, (2024) 26 G.O. II 4364 (the “Amended Regulation”).
3. Charter of the French Language, CQLR, c. C-11 (the “Charter”).
4. Id. at art. 51.
5. Trademarks Act, R.S.C. 1985, c. T-13 (the “TMA”).
6. Charter, art. 51.1.
7. Id.
8. Amended Regulation, art. 7.1.
9. Id., art. 27.2.
10. Id.
11. Amending Regulation, art. 7.
12. Id.
13. Charter, art. 58.
14. Id.
15. Id., art. 58.1.
16. Id.
17. Amended Regulation, art. 25.1.
18. Id., art. 27.4.
19. Charter, art. 52.
20. Id.
21. Id.
22. Amended Regulation, art. 13.
23. Draft regulation, art. 9.
24. Charter, art. 55.
25. Id.
26. Amended Regulation, art. 27.3.
27. Id.
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