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Torys is a business law firm that provides sophisticated legal counsel across various sectors. The firm offers a range of services including corporate law, mergers and acquisitions, environmental law, and class action litigation. Torys primarily serves clients in sectors such as private equity, technology, and agribusiness. It is based in New York, New York.

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Canada: New Draft Regulation Clarifies Certain Provisions Of The Charter Of The French Language For Businesses - Torys LLP

Feb 23, 2024

To print this article, all you need is to be registered or login on On January 10, 2024, Québec's Minister of the FrenchLanguage, Jean-François Roberge, published a draftRegulation to amend mainly the Regulation respecting thelanguage of commerce and business (the Draft Regulation) inthe Gazette officielle du Québec. This Draft Regulation aims to clarify certain amendments madeunder An Act respecting French, the official and commonlanguage of Québec (often referred to as Bill 96) tothe Charter of the French Language (the Charter) (see ourprevious bulletin ) and to facilitate the implementationof the Charter. What you need to know Exceptions to the use of French on products andpackaging. The Draft Regulation further addresses whereproduct and packaging information can be provided exclusively in alanguage other than French—for example, a two-year extensionto comply for products manufactured before June 1, 2025 isavailable in certain circumstances, and the definition of a"registered trademark" has been broadened toinclude applications pending at the Canadian IntellectualProperty Office (CIPO). Requirements outlined for the predominance of Frenchfor products and availability of related contracts inFrench. The Draft Regulation also simplifies theapplication of certain Charter provisions related to packaginginformation and contracts of adhesion, and introduces new rules forpublic signage bearing trademarks and company names—forexample, the Draft Regulation clarifies the "markedlypredominant" requirement for French and thus, repeals theRegulation defining the scope of the expression "markedlypredominant" for the purposes of the Charter of the Frenchlanguage. Comment period is open until February 26.Written comments on the Draft Regulation may be submitted to theMinister of the French Language until February 26, 2024 (45 daysfrom the publication of the Gazette). Timeline for provisions coming into force.While the majority of the provisions will come into force on June1, 2025, some will come into force 15 days after they are publishedin the Gazette, including provisions that 1) have been reworded forconsistency with the Charter; 2) define the scope of the term"inscription on a product" for the purposes of section 51of the Charter; 3) clarify that documents covered by section 52 ofthe Charter include information published on websites and socialmedia; and 4) are related to contracts of adhesion. Overview of the amendments to the Regulation respecting thelanguage of commerce and business Registered trademark exception As mentioned in our bulletin about the impact of Bill 96 onpackaging, signage and commercial advertising, the "recognizedtrademark" exception will be replaced by a "registeredtrademark" exception on June 1, 2025. This change is reflectedin the Draft Regulation. The Draft Regulation provides a welcome clarification: for thepurposes of the Charter, a pending trademark application will beconsidered as a registered trademark as of the date of theapplication for its registration to the Registrar of Trademarks andwill be allowed to appear exclusively in a language other thanFrench as long as no corresponding French version has beenregistered. Given lengthy examination delays at CIPO, thisprovision is very helpful to brand owners. (Notably, the"registered trademark" exemption was notsimilarly broadened for trademarks on signage/commercialadvertising.) Even then, as of June 1, 2025, if a generic term or adescription of the product is included in a registered mark, itmust appear in French on the product or on a medium that ispermanently attached to the product. In this regard, the Draft Regulation provides further andmuch-anticipated clarification since the expressions "genericterm" and "description" have raised manyinterpretive questions. The Draft Regulation states that "adescription refers to one or more words describing thecharacteristics of a product" and "a genericterm refers to one or more words describing the nature of aproduct". That said, the Draft Regulation does not providespecific guidance about how this will be interpreted. Moreover, it clarifies that under no circumstances should ageneric term or a description of a product included in a trademarkwritten in other languages be given greater prominence than that inFrench or be available on more favourable terms. The Draft Regulation also provides that "a product"includes its container, wrapping and any other document or objectsupplied with it. Finally, the Draft Regulation provides that if a product wasmanufactured before June 1, 2025, and no French version of itsrecognized trademark was registered on the date of publication ofthe regulation in the Gazette, any product that does not complywith the "registered trademark" exception provided for insection 51.1 of the Charter that will come into force on June 1,2025, may, until June 1, 2027, still bedistributed, sold at retail, rented, offered for sale or rental orotherwise marketed. This provision, therefore, provides a welcomeadditional adjustment period, given the length of time consumerproducts can remain in retail channels before sale. Inscription on a product and documents available to thepublic The Draft Regulation clarifies that the inscription on aproduct, which must be in French in accordance with section 51 ofthe Charter (and may be accompanied by a translation provided thatthis translation is not given greater prominence than the Frenchversion), extends to "the inscription displayed for the userusing an integrated software". The regulation confirms the position already taken by the Officede la langue française, namely that the requirement fordocuments referred to in section 52 of the Charter (catalogues,brochures, folders, etc.) to be drawn up in French and to make theFrench version available on terms that are as favourable as thosein another language, includes information published on websites andsocial media platforms. These clarifications are among those that will come into forcebefore June 1, 2025. Contracts of adhesion In accordance with the provisions of the Charter in force sinceJune 1, 2023, contracts of adhesion must be drawn up in French. Aparty cannot explicitly choose to adhere to a contract of adhesiondrawn up in a language other than French unless it has firstexamined the French version. The documents related to the contractmay then be drawn up exclusively in that other language. The DraftRegulation specifies that the documents related to a contract ofadhesion include documents attesting to the existence of thecontract, such as a certificate of insurance, documents whoseattachment to the contract are required by law (such as aresolution or resiliation form) and documents that otherwiseconstitute an ancillary document. This list is non-exhaustive giventhe wording of the provision. The legislator also clarified how to satisfy the requirement toprovide the French version of a contract of adhesion before a partycould choose to adhere to the version in another language when thecontract is made by telephone or digitally, which had also raisedmany questions. In the first case, the requirement is satisfied ifthe adhering party has had the opportunity to consult a Frenchversion of the applicable standard clauses digitally or if thecontract is to take effect immediately and the adhering party doesnot have the technological means to access the applicable standardclauses. In the second case, the requirement is satisfied if aFrench version of the applicable standard clauses has been providedto the adhering party. Public signage The Draft Regulation clarifies certain provisions of the Charterregarding public signage. In particular, it addresses the scope ofthe "markedly predominant" requirement for French inpublic signage and commercial advertisements. In view of these newrules, the Regulation defining the scope of the expression"markedly predominant" for the purposes of the Charter ofthe French language is repealed. Pursuant to the Draft Regulation, "markedlypredominant" is where "the text in French has a muchgreater visual impact than the text in the other language".Furthermore, greater visual impact is deemed to occur when 1) theFrench text is at least twice as large as the text in the otherlanguage, and 2) the legibility and permanent visibility of theFrench text are equivalent to the text of the other language.However, the Draft Regulation does not provide specific guidanceabout how this second criterion, which is new, will be interpreted.The Draft Regulation also lists factors that should not beconsidered when assessing the marked predominance of French(business hours, addresses, etc.) and visual impact. The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances. AUTHOR(S)

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