Should a Brand Speak for Itself?

Kelly Moffatt

Feb 2012

By Helen Burnett-Nichols, Canadian Lawyer Magazine

For many retailers already established in Quebec, as well as those looking to set up shop in the province, a new campaign to ensure that outside store signage complies with the Charter of the French Language is leading to questions about what is ultimately best for their brand.

Concerned by a fresh upsurge of multinational retailers coming into Quebec and using trademarks exclusively in other languages, the Office québécois de la langue française has made the issue a priority, kicking off a campaign last November aimed at urging companies to comply with language requirements with respect to signage.

But rather than a question of companies failing to abide by the legal requirements of the Charter or being dismissive of cultural issues, Kelly Moffatt, head of the marketing and distribution practice group at Osler Hoskin & Harcourt LLP, says many retailers already thought they were working within the Charter’s legal framework. “A lot of the retailers, certainly clients I deal with, are good corporate citizens, and they say, ‘this is the law, this is what the Charter says, and this is what the Charter requires and this is what we have been doing and we continue to do,’” she says.

“There [have] not been any recent changes to the Charter, so we’re dealing with the same legislation and regulations that we’ve been dealing with in Quebec for quite some time,” she adds.

With the new campaign, the Office, she says, is taking a trademark analysis approach, saying that when you put that company sign on the outside of a store, it is not being used as a trademark, but as a trade name…. The signage issue is not a new one in the province.

The result of the campaign so far has been a relative flurry of activity since mid-2011 for companies responding to correspondence from the Office, engaging in discussions with organizations like the Retail Council of Canada and waiting to see what the campaign brings, explains Moffatt.

When contacted for its views on the campaign, the Retail Council of Canada said it “has no comment at this time.”

Essentially, says Moffatt, the decision to add a descriptor is a branding and marketing issue, rather than a legal issue, raising the question of the power of a company’s brand and who is the custodian of many retailers’ most important asset.

“I think it’s an issue of those specific retailers being in control of their brand and if they make a business decision of ‘I want to have a French version of my name,’ so like a Shoppers Drug Mart in Quebec is Pharmaprix,” she adds.

Depending on the retailer and the strength of their brand and business objectives, adding a descriptor could possibly be a positive step, but ultimately represents a blurring of the line between what the legal requirements are and what an individual company’s marketing decisions are, says Moffatt.

Ultimately, says Moffatt, it is perhaps the legislation that needs to adapt. “If the current legislation, which is meant to protect these unique cultural issues and language issues, is insufficient, the appropriate approach is to deal with the legislator and have amendments made to the legislation or the regs,” she says.

“Things have changed since the ’70s with this legislation and we need to regroup, revisit, and revise, and I think retailers would be probably receptive to that,” she adds.