Draft Regulation under Bill 96 amending Québec’s Charter of the French Language finally published

January 10, 2024
by François Larose and William Audet

The Québec government has finally published the draft regulation that will amend the existing Regulation respecting the Language of Commerce and Business following the enactment of Bill 96 on June 1, 2022. The revision of the regulation became necessary due to uncertainties raised by Bill 96, particularly concerning the use of non-French trademarks on products sold in Québec and on store-front signage of Quebec stores. This anticipated regulation was expected several months ago. While some uncertainties persist, it does offer additional guidance. Moreover, it appears that the Québec government has taken businesses’ concerns into account regarding the new requirement to register non-French trademarks on products sold in Québec and provided an extra two-year phase-out period for non-compliant products. Keep on reading!

Here are the key highlights from the Quebec Regulation amending the Regulation respecting the Language of Commerce and Business:

Inscriptions on Products:

Under the Charter of the French Language, any text on a product, its container, wrapping, or accompanying documents or object, must be in French. Translations in another language are allowed, provided they do not receive greater prominence than the French text or are available on more favourable terms. The well-known exception for “recognized trademark” permits the use of trademarks (whether registered or not) exclusively in a language other than French.

As many brand owners know, Bill 96 restricted the application of the “recognized trademark” exception to “registered” marks and required that marks containing generic and descriptive language of the goods be translated in French and appear on the product or a medium permanently attached to the product.

  • Pending trademark applications. First, some good news: the draft Regulation provides an important clarification – which unfortunately only applies to marks displayed on products, and not to public signage/commercial advertising. Under this new rule, “registered trademark” includes a pending application. This is a significant development for businesses and Québec consumers alike, as it means that businesses won’t have to wait for their trademark registration to be finalized before benefiting from the trademark exception. This provision helps avoid potential delays in the commercialization of new products under a pending Canadian trademark application in Québec.
  • “Product”. The draft Regulation confirms that “product” also encompasses the product’s container, wrapping and accompanying documents. This clarification dispels the uncertainty raised by some commentators who believed that the new requirement applied solely to the product itself and not its packaging.
  • French translation size. The draft Regulation also addresses an uncertainty regarding the size of the French translation of generic or descriptive terms. It provides that the non-French generic/descriptive terms within a registered mark cannot be more prominent or be available in more favourable conditions than their French counterparts. This introduces a potential complication for businesses, as they will now need to allocate more space on products and their packaging for the French translation of the descriptive/generic text within a non-French mark.
  • Definition of descriptive and generic. The draft Regulation provides the following definition of “descriptive”: one or more words describing the characteristics of the product (since “product” includes the product’s container and wrapping, we can assume that the description of the container – e.g., Made from recycled plastic – is included. Additionally, “generic”: one or more words describing the nature of the product.
  • Remaining uncertainties. There are still uncertainties that the draft Regulation has not addressed, such as the definition of a “medium permanently attached to the product”. Additionally, it does not restrict the new descriptive/generic translation requirement to registered trademarks that consist of a label. The concern over these registered “label” trademarks was raised by the Minister of Justice during examination of Bill 96 and is believed to be the initial basis behind the descriptive/generic rule. Further, it does not mention clearly descriptive trademarks that have become distinctive through use and registered under s. 12(3) of the Canadian Trademarks Act.
  • Phase-out period. Products that do not comply with the new requirement can still be distributed, sold at retail, rented, offered for sale or for rent, or otherwise marketed, whether free of charge or not, until June 1, 2027 provided that (i) they were manufactured no later than June 1, 2025, and (ii) no French version of the mark was registered at the date of publication of this Regulation. This grants businesses an additional two years to achieve compliance and establishes a phase-out period for non-compliant goods.

Commercial Publications:

  • Websites and social media. The draft Regulation explicitly provides that websites and social media platforms are considered commercial documents, thereby codifying the interpretation previously held by the Office of the French Language (OQLF).

Public Signage/Commercial advertising:

Under the Charter of the French Language, public signs and posters and commercial advertising must be in French. They may also be both in French and another language provided that French is markedly predominant. Similar to products, the “recognized trademark” exception permits the exclusive use of trademarks (whether registered or not) in another language than French.

With respect to public signage, Bill 96 restricted the “recognized trademark” exception to “registered” marks. Moreover, even where the non-French trademark is registered, French must appear in a “markedly predominant” manner when such mark appears on public signs and posters visible from outside premises (e.g., store-front signage).

  • Markedly predominant. The draft Regulation replaces the “sufficient presence of French” requirement that came into force in 2016 for store-front signage (which could be smaller in size than the non-French trademark) and repeals and replaces the Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, with a more stringent requirement. For instance, the presumption that French text being twice as large or twice as numerous as other languages would be considered as markedly predominant is changed. Now, the only way to comply is for the French text to be at least twice as large and as visible as the non-French text. Businesses will, therefore, no longer be able to simply add more French text of the same size as the non-French text. For example, on store-front signage, French will have to be at least twice as large as the non-French text and mark – period.
  • Outside premises. The draft Regulation resolves another uncertainty in Bill 96. Initially, as drafted, it appeared that the new requirement to feature markedly predominant French on store-front signage applied solely to premises inside a mall or building. The draft Regulation clarifies that this requirement extends to signage on the exterior of buildings as well.
  • French text to be added. The French text to be added to store-front signage, when a non-French mark appears, encompasses generic or descriptive of goods or services, as well as slogans. This list appears to be non-exhaustive.
  • Registered trademarks only. Regrettably, the draft Regulation does not provide that this exception will apply to pending Canadian trademark applications, unlike for products.

The draft regulation also provides details on the new requirement for contracts of adhesion, a topic not covered in this article.

Anyone can comment on the draft Regulation within the next 45 days by writing to the Minister of French Language. Do not hesitate to contact us if you wish to share your comments on the draft Regulation.


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