Québec Looking to Curtail English (and Other Languages) Trademarks Through Revised French Charter

The Québec government recently tabled a bill, called Bill 69, that seeks to amend several statutes, including the province’s Charter of the French Language, so as to better protect the French language. This bill seeks to consolidate existing rules, so as to reinforce the idea that French is the sole official language of the province of Québec, including in principle in how business is conducted.

Interestingly, as to I.P., the revised Charter would do away with an exception that legislators had inserted in the original statute, namely that trademark were generally exempted from complying with normal rules, including on store signs. Indeed, up to now, the Charter accepted that trademarks, whether registered or unregistered, were essentially outside the scope of what could be regulated by this provincial statute. As such, the OQLF could hardly enforce rules meant to force businesses to use and display French (e.g. on store signage, etc.), whenever trademarks were involved. This lead many businesses to adopt and use English-based trademarks, something that Québec courts eventually confirmed as totally acceptable under the existing Charter of the French Language.

This provides context to Bill 69’s introduction, as the Québec government is clearly now attempting to slam the door shut on that trademarks exception, to the fullest extent (legally) possible. To do, the revised version of the French Charter would essentially restrict what are considered trademarks for purposes of the exception explained above. If/when the bill goes through, the only trademarks that would remain considered protected from the obligation of being shown in French, are marks that have been duly registered, period. In effect, this would do away with trademarks displayed by businesses that did not bother or did not manage to register in Canada.

Québec cannot forbid non-French trademarks (because of the Canadian Constitution), but it can try and restrict what it will consider a trademark for the purposes of its language laws, which is exactly what this is about.

Setting aside the issue of whether legally a province may do something like this, businesses may want to start preparing for the proposed changes to the French Charter, by simply registering their marks, assuming they haven’t done so already. Though large companies will usually have done so, a lot of small and medium sized businesses do not bother registering their marks, preferring to fall back on common law rights. If those marks are in a language other than French, this may soon become a problem.

Fortunately for SMEs, registering a mark in Canada is relatively inexpensive, as compared to other jurisdictions. Businesses should however take note that typical delays are now around 3 years to register a mark in Canada. Given that the French Charter’s new provisions on trademarks will come into force 3 years after adoption of the bill, businesses the trademarks of which have not already been registered may want to get on it.

Mind you, Bill 69 has not yet been formally adopted but with a majority government in Québec at the moment, it seems to make little doubt that the bill will be adopted at some point.

Allowing Insurers to Pay Ransoms from Ransomware Attacks: A Bad Good Idea

Faced with a seemingly endless series of cyberattacks through ransomware, some businesses are now turning to insurers to make sure they are in a position to pay eventual ransoms. Insurers indeed realized a while back that some companies would pay to insure against the risk of facing cyberextortion and having to pay to recover their own data. Once insured with such coverage, a business can essentially have the insurer pay the ransom that cybercriminals are requesting once the business falls victim to ransomware that encrypts its data.

Recently, the European insurer AXA decided to stop offering this type of coverage, in France, including because of certain comments from French authorities about the fact this type of coverage was essentially counterproductive and, as such, may be something that France would soon prohibit. Indeed, according to many (including the FBI), the existence of insurance coverage of this type in fact encourages the ransomware industry, because it increases the odds of managing to convince the typical victim of such a cyberattack to pay a ransom.

In what may be a clue that not offering this type of coverage does play into the hands of criminals, shortly after its announcement, AXA’s Web servers were the object of a DDoS attack from criminals, in what may be seen as retaliation. It seems criminals do want insurers to keep paying ransoms, which may be a reason to rethink allowing it, in the future, if you ask me.

Even though forbidding payments by insurers is not likely to stop ransomware, many are now calling for a global strategy that may allow us to collectively fight the problem, including by stopping  to throw oil on the fire, so to speak. Sure insuring against this risk is convenient but is it the right thing to do in the grand scheme of things? The question stands.