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Differences in the Civil Law System of the Province of Quebec

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Differences in the Civil Law System of the Province of Quebec DIFFERENCES IN THE CIVIL LAW SYSTEM OF THE PROVINCE OF QUEBEC Hugues G. Richard* LEGER ROBIC RICHARD, Lawyers, ROBIC, Patent & Trademark Agents Centre CDP Capital 1001 Square-Victoria- Bloc E – 8th Floor Montreal, Quebec, Canada H2Z 2B7 Tel. (514) 987 6242 - Fax (514) 845 7874 www.robic.ca - [email protected] Out of the ten provinces of the Canadian Confederation, Quebec can be singled out as being different in many ways. While in the other provinces the common law governs the relationship between persons within each province, in Quebec the Civil Code1, inspired by the law of France, applies. This major difference has consequences, inter alia, with respect to the laws governing contracts, torts and property. Under the Civil Code of the Province of Quebec, a trademark is considered as an incorporeal moveable property. Unless otherwise provided for by agreement between the parties, such property is governed by the law of the domicile of its owner. But the law of the Province of Quebec is applicable whenever the question involved relates to the nature of the property and to the jurisdiction of the courts and procedure2. While it is possible for parties to a license agreement to elect domicile in a foreign jurisdiction and to determine the law under which the agreement will be governed, it must be remembered that the courts of the defendant party are often the only courts able to issue effective injunctive orders against the defendant and to award damages to the plaintiff. For instance, a judgment rendered in California cannot be enforced in Quebec unless confirmed by a decision of a Quebec court recognizing the foreign judgment. If a United States licensor agrees to be subject to the juris-diction of Quebec courts, but insists on having the laws of the licensor's domicile govern the interpretation of the agreement, the licensor may be creating difficulty for © LEGER ROBIC RICHARD / ROBIC, 1988. *Lawyer and trademark agent, Hugues G. Richard is a senior partner in the lawfirm LEGER ROBIC RICHARD, g.p. and in the patent and trademark agency firm ROBIC, g.p. (1988), 78 Trademark Reporter 252-255. Publication 28. 1Code of Civil Procedure, Sections 751 to 761. 2Code of Civil Procedure, Sections 733 to 740. 2 itself by having to prove the applicable United States law. In the context of interlocutory proceedings, the necessity of making such proof can make the difference between winning or losing, or determine whether such proceedings can be instituted in a timely fashion. In the Province of Quebec, provisional orders for interlocutory injunctions can be obtained rapidly from Superior Court Judges sitting in chambers. These injunctions are normally valid for ten days and can be renewed until the interlocutory injunction proceedings are heard. An order granting an interlocutory injunction is valid until judgment on the merits. In case of breach of a licensing agreement, it is of interest to note that if the license agreement stipulates that the ownership of copyright in designs or written material exists in favor of the licensor or if ownership in tangible assets in possession of the licensee is in the licensor, all infringing copies of the designs or of the written material and the tangible assets can be seized by the licensor before judgment. These seizures can be obtained ex parte3. This possibility of seizing before judgment goods which are alleged to be owned by the licensor or infringing copies of works protected by copyright owned by the licensor is unique to the Province of Quebec. The Province of Quebec has enacted a law to protect and encourage the use of the French language in its territory; it is entitled the Charter of the French Language4. A license agreement executed in the Province of Quebec can be written in English or in French. If written in English, in certain circumstances, in one of its paragraphs the contract should state in the French language that the parties have expressly asked that the contract be written in English5. The Charter states that subject to certain exceptions, "signs and posters and commercial advertising shall be solely in the French language6." As far as trademarks are concerned, regulations enacted under the Charter have stated that those trademarks adopted before the coming into force of the Charter (August 26, 1977) which were in a language other than French could be continued to be used. Certain aspects of the Charter are presently before the Supreme Court of Canada for adjudication of their constitution- ality7. As a consequence of this, it is generally considered that new trademarks introduced on the Quebec marketplace must not be in a language other 3RSQ 1977 c. C-11. 4Id. Section 55. 5Id. Section 51. 6Regulation respecting the language of commerce and business, RRQ c. C-11, r. 9, art. 16. 7For example, La Chaussure Brown's Inc. v. Le Procureur Général du Québec (unreported, Québec Court of Appeal, December 22, 1986). 3 than French. This has caused American manufacturers to translate into French many of their new trademarks. Example include: CABBAGE PATCH DOLLS/POUPEES BOUT DE CHOIX, CARE BEARS/CALINOURS, MY LITTLE PONY"MA PETITE POULICHE8. Licensing in Quebec is therefore in some respects different from what it is within the rest of Canada. Most of these differences can be dealt with through a careful selection of trademarks and a properly drafted licensing agreement9. 868 TMR 56 (1978) and 70 TMR 339 (1980). 9Since the foregoing notes were written, the Canadian government has announced its intention to eliminate the registered user system. However, it is not yet clear if the scheme will be abolished and, if so, how licensing will be controlled under the statute. By the Editor, Sheldon Burshtein. 4 ROBIC, un groupe d'avocats et d'agents de brevets et de marques de commerce voué depuis 1892 à la protection et à la valorisation de la propriété intellectuelle dans tous les domaines: brevets, dessins industriels et modèles utilitaires; marques de commerce, marques de certification et appellations d'origine; droits d'auteur, propriété littéraire et artistique, droits voisins et de l'artiste interprète; informatique, logiciels et circuits intégrés; biotechnologies, pharmaceutiques et obtentions végétales; secrets de commerce, know-how et concurrence; licences, franchises et transferts de technologies; commerce électronique, distribution et droit des affaires; marquage, publicité et étiquetage; poursuite, litige et arbitrage; vérification diligente et audit; et ce, tant au Canada qu'ailleurs dans le monde. La maîtrise des intangibles. ROBIC, a group of lawyers and of patent and trademark agents dedicated since 1892 to the protection and the valorization of all fields of intellectual property: patents, industrial designs and utility patents; trademarks, certification marks and indications of origin; copyright and entertainment law, artists and performers, neighbouring rights; computer, software and integrated circuits; biotechnologies, pharmaceuticals and plant breeders; trade secrets, know-how, competition and anti-trust; licensing, franchising and technology transfers; e- commerce, distribution and business law; marketing, publicity and labelling; prosecution litigation and arbitration; due diligence; in Canada and throughout the world. Ideas live here. COPYRIGHTER IDEAS LIVE HERE IL A TOUT DE MÊME FALLU L'INVENTER! LA MAÎTRISE DES INTANGIBLES LEGER ROBIC RICHARD NOS FENÊTRES GRANDES OUVERTES SUR LE MONDE DES AFFAIRES PATENTER R ROBIC ROBIC + DROIT +AFFAIRES +SCIENCES +ARTS ROBIC ++++ ROBIC +LAW +BUSINESS +SCIENCE +ART THE TRADEMARKER GROUP TRADEMARKER VOS IDÉES À LA PORTÉE DU MONDE , DES AFFAIRES À LA GRANDEUR DE LA PLANÈTE YOUR BUSINESS IS THE WORLD OF IDEAS; OUR BUSINESS BRINGS YOUR IDEAS TO THE WORLD .
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