Ira Marcovitch, Summer Law Student
Perhaps it’s a sign of a sign of the decline of linguistic nationalism in Quebec, or perhaps a common sense interpretation of Quebec’s ever-contentious language signage policy after a recent rebuke of sovereigntists at the ballot box. Either way, one is sure that Rene Levesque has accomplished at least two half-turns in his grave.
In a comprehensive and thoughtful judgement (released only two days after the previous provincial election. Coincidence?), Justice Yergeau of the Quebec Superior Court ruled that companies may display an English-only (read non-French or bilingual) trademark on commercial signage in the province without adding a French descriptor. Quelle domage.
The issue arose as a motion by a group of notable big box stores – Best Buy, Costco and the Gap to name but a few, in opposition to pressure from the Office Quebecois de la Langue Francaise (“OQLF”) to add a French descriptor to the companies’ English-only trademarks. The parties were seeking a declaration that the posting of trademarks only in a non-French language was not contrary to the Charter of the French Language. While the Charter (Bill 101 for the politics junkies amongst us) provides that all public signage in the province must be in French or French as well as another language, there exists a little known exception in the regulations made under that Act. Under s.25 of the Regulations, a trademark may be publicly posted in a language other than French, unless a French trademark has been registered with the Canadian Intellectual Property Office, in which case the French trademark must be displayed.
In 2011, the OQLF, the regulatory body charged with ensuring compliance with the Charter, began campaigning to suppress the use of English-only trademarks on store signage. As a result, many store owners, including the parties to this action, were pressured by the OQLF to change their signage. The OQLF’s argument was essentially that by posting a trademark on the front of their stores, the stores were using the trademarks to advertise their business or firm name which, according to the Charter, must be in French.
Justice Yergeau disagreed with the OQLF, holding that their conflation of trademarks and business names would render the exception in s.25 of the Regulations useless. The Court also noted that for nearly two decades, the OQLF had allowed the posting of English-only trademarks and, in many cases, had confirmed to individual retailers that such would comply with the Charter. Finally, Justice Yergeau held that the interpretation that the OQLF had recently adopted was not consonant with the scheme of the regulations or the Charter. He held that the plain text of the section, when read together with the Act as a whole, supported an interpretation allowing English-only trademarks on public signage.
However, like the debate over sovereignty or the Habs’ run for the cup, one should not discount the fighting spirit of La Belle Province. On May 8th, the Attorney General for Quebec announced that they would be appealing the decision to the Quebec Court of Appeal. It will be interesting to see how vigorously the federalist, Liberal provincial government decides to fight battles started by its sovereigntist PQ predecessors and how the Court of Appeal rules on an issue that has proven to be amongst the most divisive in that province’s history. Stay tuned.
For the full-text of Justice Yergeau’s decision click here.