By Geneviève Bergeron and Alexandra Nicol, Borden Ladner Gervais
Canada is a federal state, in which legislative jurisdiction is divided – and sometimes shared – between the federal (or national) government and the governments of the individual provinces and territories that make up the federation. English and French are Canada's official languages at the federal level. The official language of the province of Québec is French.
The federal Consumer Packaging and Labelling Act and regulations require that certain prescribed information found on the labels of pre-packaged products is to be given in both English and French, subject to certain exemptions.
Québec language laws
The Charter of the French Language recognises French as the normal language of work and commerce in the province. The Charter and associated regulations have a significant effect on commercial activity conducted in Québec. The Charter requires French to appear in labelling and advertising, commercial signage and websites, subject to certain exceptions. Text in other languages (including English) is permitted, subject to certain restrictions.
Business names must also be in French. Business names in other languages are permitted, as long as the business declares the French version of the name to be used in the province and, in using the non-French name, also complies with the restrictions imposed by the Charter. An expression from a language other than French (including a non-French trade mark) is permitted in business names, provided the expression is used with a French generic term.
The Office Québécois de la Langue Française, which ensures compliance with the Charter, has the power to make inspections or inquiries, impose fines for non-compliance and require an offender to remove or destroy non-compliant signs, advertisements and the like.
Trade mark exemption
Among the exemptions from the Charter's French-language requirements is a recognised trade mark within the meaning of the federal Trade Marks Act, unless a French version has been registered.
According to the language of the Charter, the exemption should also be available for an unregistered mark, to the extent that proof of its use in association with products or services for a certain length of time can be established. The Office has indicated, however, that as a matter of policy it now considers that the trade mark exception applies only to a mark that is registered with the Canadian Intellectual Property Office (CIPO), and only where the registration requirements associated with the mark are fulfilled at the time the trade mark exception is raised. A party relying on a valuable unregistered mark in a language other than French is therefore advised to register the mark with CIPO.
The Office also expects that users of trade marks will register a French version unless the mark cannot be translated into French or the mark is such that a French version would have no commercial value.
Nothing in the Charter precludes, however, the use of artificial combinations 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.