By Éric Blais
If mass merchant Zellers was still operating today, it would be one of the few retailers in Québec with an English trademark complying with the language law. The retailer’s famous slogan “Because the lowest price is the law” (Le plus bas prix est la loi) set in large type next to the English trademark would likely meet the requirement for the “predominance of French”, which is at the core of Bill 96’s provisions for public signs and posters visible from outside premises.
Why? It’s complicated. And it’s still unclear how this will be enforced after the June 1, 2025 deadline.
For those who like reading legal texts, here is a link to the Bill (in English).
For those who find these things TLTR, here is an overview of the law’s implications for retailers operating in Québec.
The spirit of the law
The purpose of this bill is to affirm that the only official language of Québec is French. It also affirms that French is the common language of the Québec nation. To that end, the bill makes several amendments to the Charter of the French language.
Importantly for retailers and marketers, the bill strengthens provisions relating to the use of French as the language of commerce and business, in particular as it concerns signs and posters.
Bill 96 introduces a new section 58.1 regarding the exception for public signs, posters and commercial advertising. A trademark may be displayed only in a language other than French in public signs, posters and commercial advertising, without a French version, as long as (1) the trademark is registered under the Trademarks Act; and (2) there is no corresponding French version in the Trademark Register.
Simply put, Canadian Tire can use this trademark on its signs as long as it doesn’t trademark a French version like Pneu canadien. But it will need to do so with conditions that might make this impractical from a branding standpoint.
On the other hand, furniture retailer Leon’s must use its French trademark Léon on its signs, which it already does. Just like Shoppers Drug Mart will continue to use its Pharmaprix trademark, Staples its Bureau en gros name, and so on.
If the trademark does not meet these two conditions, it must contain a French version that appears in the public sign, poster and/or commercial advertising in a “markedly predominant” manner.
From the sufficient presence of French to the predominance of French
This is a small wording change with massive and potentially very confusing implications for retailers. The requirement used to be that there should be “sufficient presence of French”. That is why many national and international retailers operating in Québec added a French descriptor to their signs. Walk on Montreal’s Ste-Catherine Street or visit a shopping mall in Québec and you will see Winners Mode, Boutique Lululemon, Victoria’s Secret Lingerie, Newlook lunetterie, Moores Vêtements pour hommes, and many others before heading to Café Starbucks for a café au lait or lunch at Les restaurant Burger King or Five Guys Hamburgers et Frites.
It is important to note that this rule applies to any “public signs and posters visible from outside premises” as well as any signage placed inside a premise if its installation or characteristics are intended to be seen from the outside. This applies to registered trademarks that are only in a language other than French – not just English. I suspect there will be many gray zones about what defines a trademark in a language other than French. Take Japanese apparel retailer Uniqlo. It’s a contraction of Unique Clothing Warehouse. Or Spanish retailer Zara, which was initially called Zorba after the classic 1964 film Zorba the Greek.
Would these retailers be required to ensure the “predominance of French” on their signs? That’s unlikely. The Charter’s paragraph 67, which isn’t amended by Bill 96, states that “Family names, place names, expressions formed by the artificial combination of letters, syllables or figures, and expressions taken from other languages may appear in the names of enterprises to specify them.”
Who knows for sure? After all, we’ve had the so-called Pastagate in 2013.
You may recall how an inspector of the Office québécois de la langue française (OQLF) sent a letter of warning to an upscale restaurant, Buonanotte, for using Italian words such as pasta, antipasti and calamari on its menu instead of their French equivalents. The incident occurred as the National Assembly was debating Bill 14, a bill to toughen the province’s Charter of the French Language. Instead of complying with instructions on the letter he received from the OQLF, the owner of Buonanotte went public, and it generated a widespread public outcry across the province, even among francophones, about the OQLF abusing its powers. The incident led to the resignation of Louise Marchand, head of the OQLF.
Once the law is in effect, here’s how Café Starbucks might look like in Québec.
It makes no sense from a branding standpoint. And that’s likely the government’s point. Bill 96 is meant to strengthen the Charter. And one way to do so is to make it impractical to keep using an English trademark on signs. The law is effectively forcing retailers to trademark a French version of their name. So, the idea that electronics retailer Best Buy could become Meilleur Achat in Québec is no longer far-fetched.
Failure to comply will be costly
Bill 96 gives the OQLF new power.
The court may, on an application by the OQLF, order the removal or destruction of any poster, sign, advertisement, billboard or illuminated sign that contravenes the Charter, at the expense of the offender. The minister of the French Language will have the power to suspend or revoke a permit delivered by another authority in Québec. The fines for contravening the Charter can be as high as $30,000. Amounts are doubled for a second offence and tripled for any additional offence.
While this is no laughing matter, I suspect we will see some very creative interpretations of the law and adaptations in order to comply. Since ”marked predominance” of French is satisfied if the text written in French “has a much greater visual impact than the text written in the other language”, what’s to prevent a retailer like Winners to keep using its name, keep its current illuminated sign and add markedly larger sign next to it with its French slogan? Or Lululemon adding a large backlit sign with one of its mottos like “Do one thing a day that scares you” in French in large font?
This story is definitely one to be continued, or À SUIVRE.
Borden Ladner Gervais LLP Charter Of The French Language: Changes Affecting Trademarks In Québec, 21 July 2022 by Clara Chow and Genevieve Bergeron