Still Kicking: Quebec Court Confirms The Constitutionality Of The Charter Of The French Language, Clarifies The Rule Of 'Marked Predominance' And Reiterates The Exemptions For Unregistered Trademarks

In a recent decision,1 the Court of Quebec reiterated the requirement under Quebec's Charter of the French Language (the "Charter") that French language signage be "markedly predominant" and confirmed that both registered and unregistered trademarks may appear exclusively in another language in inscriptions on products, in catalogues, brochures, folders, commercial directories and similar publications (including websites), and in public signs and posters and commercial advertising.

Facts

A number of small businesses operating mostly in English in the Montreal area were charged with various violations of the Charter. More specifically, the Anglophone merchants were charged with having installed signs in a language other than French or on which French was not "markedly predominant", having sold products with non-French labelling and having advertised online exclusively in English.

Decision

All merchants were found guilty as charged, save for one, which used a trademark exempt slogan. The following are the most salient points that can be gleaned from the decision. How Predominant is "Markedly Predominant"? Section 58 of the Charter allows the use of a language other than French on commercial signs on the condition that French remains "markedly predominant". A number of defendants argued that placing the French inscription first on the sign ought to be sufficient to achieve "marked predominance". The Court of Quebec rejected the argument that simple priority in the placement of French text on a sign could satisfy the rule and confirmed the mathematical requirement set out in the Charter regulations. The Court found that "marked predominance refers to the greater visual impact of the French language when compared to the other language included on a sign". As the judge put it, "size does matter" for commercial signage; the 2:1 ratio between the size of the French inscription and the English inscription provided under the regulations satisfies the requirement of "marked predominance". Protection of Unregistered Trademarks Two of the defendants also invoked an exemption to the rule found under s. 58 of the Charter. Pursuant to s. 25(4) of the Regulation respecting the language of commerce and business, a trademark recognized as such under the federal Trade Marks Act used on a commercial sign avoids the requirement of "marked predominance", provided that no registered French version exists. One of the defendants, "Meldrum the Mover", successfully...