Selling Products in Quebec? The Charter of the French Language now has updated regulations

In Miller Thomson's January 30, 2024 article, we reported on the publication of a draft regulation (the “Draft Regulation”) to amend the Regulation respecting the language of commerce and business (the “Regulation”). The Regulation’s purpose is to implement the Charter of the French Language (the “Charter”), which was substantially amended by Bill 96, An Act respecting French, the official and common language of Québec (“Bill 96”), assented to on June 1, 2022.

The definitive version of this Final Regulation (the “Final Regulation”) was published on June 26, 2024. Most provisions will take effect on June 1, 2025. This Final Regulation has been highly anticipated given that the Draft Regulation announced changes that could significantly affect businesses operating in Québec.

In response to feedback from numerous stakeholders, the Government ultimately backed down on multiple amendments. Despite this backtracking, significant new obligations will still take effect on June 1, 2025, and businesses should take them into account as soon as possible.

This article outlines the key highlights of the Final Regulation.

Regulation respecting the language of commerce and business

The Regulation aims to provide exemptions to the Charter and facilitate its implementation, including by defining or clarifying the scope of various terms and expressions.

While most provisions of Bill 96 are already in effect, amendments related to (1) product labelling and packaging, and (2) public signs and posters will come into effect on June 1, 2025. 

Amendments to the Charter with respect to trademarks

It is worthwhile to first outline the nature of the amendments to the Charter enacted by Bill 96, which will come into effect on June 1, 2025.

Currently, both registered trademarks and unregistered trademarks in Canada (i.e., common law trademarks) can benefit from an exemption that allows them to be inscribed exclusively in a language other than French in the following contexts: (1) on a product, its packaging and related documents; (2) in public signs and posters; and (3) in catalogues, brochures, folders, commercial directories, order forms,  and any other documents of the same nature.

Bill 96 introduced new provisions specifying that the exemption for inscriptions on products and public signs and posters applies only to registered trademarks in Canada for which no corresponding French-language version is registered. This change has been widely discussed. Stakeholders argued that it is unrealistic that only registered trademarks benefit from this exemption for multiple reasons, including the lengthy delays currently experienced in obtaining registration in Canada.

The Government has finally reversed its position on this issue and is maintaining the status quo through an exemption to the application of the Charter. While the Charter retains the requirement for trademark registration, the Regulation extends the scope of the exemption to unregistered trademarks, which is an unusual legislative drafting technique.

Consequently, the exemption will continue to apply to any “recognized trademark within the meaning of the Trademarks Act” unless a French-language version was registered, which has been interpreted by the jurisprudence as including both registered and common law trademarks.

However, this does not resolve all issues, as new limitations to this exemption, enacted by Bill 96, will be maintained and take effect as of June 1, 2025.

First, regarding inscriptions on a product, if a trademark contains a generic term or a description of the product in a language other than French, that generic term or description must also appear in French on the product or on a medium permanently attached to the product (note that the Final Regulation does not specify what constitutes a medium permanently attached to a product).

Second, with respect to public signs and posters, the Regulation currently sets out the obligation to have a “sufficient presence” of French whenever a trademark is displayed outside a building (an immovable) in a language other than French.

Under the new provisions of the Charter, French will need to be “markedly predominant” whenever a trademark is displayed in a language other than French on public signs and posters “visible from outside premises.” Bill 96 provides similar rules for “enterprise names” (i.e., business names) that include an expression in a language other than French, although distinguishing between a business name and a trademark is not always easy.

We will address these two situations in greater detail below. The Final Regulation largely reproduces the content of the Draft Regulation on this subject, though with some adjustments.

Inscriptions on products, packaging and related documents

The Final Regulation rectifies an inconsistency in Bill 96 by clarifying that a product includes its container or packaging, as well as any document or object supplied with it.

The Draft Regulation further defines the following terms:

• a description refers to one or more words describing the characteristics of a product; and
• a generic term refers to one or more words describing the nature of a product.

Among significant changes which differ from the Draft Regulation, the Final Regulation now specifies that the name of the enterprise or the name of the product as sold cannot be considered a generic term or a description.

During the parliamentary committee review of Bill 96, the Minister of the French Language provided an example of how this rule would be applied: the trademark “SOFTSOAP BRAND, Lavender and Shea Butter, washes away bacteria, deeply moisturizes to hydrate skin, refill 50 oz., 1.56 QT, 1.47 L, refill over 6, 73 oz., use 48 less plastic per ounce, 7.5 oz. pumps” should be accompanied by a French translation for all wording following “SOFTSOAP BRAND.”

Some stakeholders had raised doubts about this example. Although “SOFTSOAP” is the name of the product, one could argue that it might still be considered a description or a generic term requiring translation into French. This uncertainty has now been resolved.

The Government of Québec has circulated an example of the application of this new rule:

Example of changes (in French)

(Source: Jean-François Roberge/X)

The Final Regulation further specifies that designations of origin and distinctive names of a cultural nature are also not considered descriptions or generic terms.

Businesses have a transitional period to comply with these new provisions. Until June 1, 2027, products that are non-compliant may still be distributed, retailed, leased, offered for sale or lease, or otherwise offered on the market, provided they were both (1) manufactured before June 1, 2025, and (2) no French-language version of the trademark was registered as of June 26, 2024.

Public signage

The Final Regulation stipulates that French is considered to be “markedly predominant” where the text in French has a much greater visual impact than the text written in another language. The criteria set out in the Final Regulation are very similar to those currently used to determine when French is “markedly predominant” (a concept already used in other contexts not involving trademarks in a language other than French). Under the new criteria:

• French text must be in the “same visual field” as the text written in another language, i.e., all the components of the public signs, posters, and commercial advertising must be visible and legible at the same time without the observer having to change position;
• French text has a much greater visual impact if (1) the space allotted to the French text is at least twice as large as the space allotted to the text in another language, and (2) the French text’s legibility and permanent visibility are equivalent to those of the text in another language (including how they are lighted) so as to make them easy to read, both at the same time, at all times; and
• some terms do not count as French text, such as business hours, telephone numbers, addresses or numbers.

In contrast, the Draft Regulation stipulated that the French text was to be twice as large as the non-French text, which gave rise to interpretational uncertainties. The “space allotted” test should be easier to apply. The Final Regulation further clarifies that in dynamic signage, French has a much greater visual impact if it is visible at least twice as long as the text in another language.

More specifically with respect to trademarks and business names in languages other than French, the Final Regulation stipulates as follows:

• public signs and posters are considered to be “visible from outside premises” if they can be seen (1) from outside a space, closed or not, including on an immovable, a group of immovables or inside a shopping centre, or (2) on a bollard or other independent structure, including a pylon sign (except, in the latter case, where more than two trademarks or enterprise names appear on the public signs and posters);
• public signs and posters of a trademark or an business name in a language other than French, visible from outside premises, must be accompanied by terms in French that occupy at least twice the space allotted to the trademark, namely: (1) a generic term of the relevant products or services; (2) a description of the relevant products or services; or (3) a slogan; and
• the current exemption in the Regulation for any artificial combination of letters, syllables or figures, or the use of pictographs, figures or initials, is maintained.

The Government of Québec has circulated examples of the application of this new rule:

Sample trademark with a generic term (in French)

Sample trademark with a slogan (in French)

(Source: Jean-François Roberge/X)

There is no transitional period, which means that businesses must be compliant as of June 1, 2025.

Other noteworthy provisions

Integrated software. Under the Charter’s rules governing inscriptions on products, which require French to be as predominant as any other language, the Draft Regulation stipulated that an inscription on a product includes inscriptions displayed for the user using an integrated software. This new provision was not included in the Final Regulation, leaving this issue in a grey area. In a 2016 decision, the Court of Québec found that English-only voice navigation control software for vehicles did not violate the Charter. However, the position of the Office québécois de la langue française (the regulator responsible for enforcing the Charter) has diverged on this issue.

Inscriptions engraved, baked or inlaid in a product. The Regulation currently stipulates that if a product originates outside Québec and has an inscription that is (1) engraved, baked or inlaid in the product itself, (2) riveted or welded to it, or (3) embossed on it, in a permanent manner, such an inscription may be exclusively in a language other than French (except for inscriptions concerning safety). The Draft Regulation eliminated this exception, but due to the outcry generated by this change, it was not included in the Final Regulation.

Contracts of adhesion. Bill 96 introduced strict rules on the use of French in contracts of adhesion. Since June 1, 2023, these contracts must be made available in French simultaneously with the version in another language; otherwise, they may be declared null and void. The Final Regulation provides certain clarifications that will hopefully make this new obligation easier to implement. These provisions are already in effect.

Conclusion

It will be worthwhile to monitor how the amendments in Bill 96 and the Final Regulation will affect businesses operating in Québec. Additionally, since the Government has not ruled out reintroducing currently excluded amendments at a later date, including those related to inscriptions that are engraved, baked, or inlaid in a product, continued vigilance is important.