A word from Annie
| Dear friends,
Oh joy! Soon it
will be the time to take a break and relax for a few days away from the
office to share moments of happiness with friends and family.
Life moves at a
fast pace: your inbox most likely fills up at lightning speed and I am
sure you will be faced with tight and demanding deadlines, without
mentioning the many uncounted hours at work.
Holidays are just on time to remind us how important our friends and
family are and to help us realise that it is time to switch off the
computer for a while...
this well-deserved break looms at the horizon, please do not forget to
cherish every precious moment you will spend with your family and
friends: capture the smile of a loved one discovering a surprise under
the tree, savour home-made dishes prepared with love, take the time to
put on some warm clothes and take a stroll in your favourite area,
discover your latest book while being comfortably wrapped in a warm
blanket... Briefly, think about stopping time for a few hours or a few
days just to recharge your batteries for 2014 and be prepared for its
new challenges! You are worth it.
wish all of you a great year 2014 filled with happiness, health and
generosity. And, as the saying goes: “Everything else will follow!”
you for your trust.
Alcoholic Beverages: Specific Points to Remember
(Part 1 of 2)
Trade-marks play a vital role in attracting
consumers’ attention to the purchase of alcoholic beverages. Marketing
considerations are certainly a key element. Also important are the
legal criteria to be met prior to their adoption and ultimate
protection under the Trade-marks Act1
(hereinafter “TMA”). We now propose to review these.
Protected Geographical Indications
(Sections 11.11 to 11.2 TMA)
Geographical Indications (“GI’s”) are a type
of Intellectual Property associated with Trade-marks. GI’s identify a
product originating from a geographical location or area of a country,
which is known or intimately associated with a given quality,
reputation or other characteristic of the product.
Specific provisions deal with wines and spirits2.
These outline formalities to be met prior to being recognised as
“Protected” GI’s. Once this status is secured, it is prohibited for
anyone to adopt or use said GI’s, as a trade-mark or otherwise (even a
translation thereof), in association with wines or spirits not
originating in the territory covered by the Protected GI.
This recognition in Canada stems from
international treaties3. The Registrar of
Trade-marks is required to maintain a list of Protected GI’s in Canada4
which is open to public consultation5.
Current Protected GI’s are for wines or
spirits, which include, for example:
However, other types of wines or spirits are
currently not protected. For instance:
This means that a wine producer or distributor
could not use the term “Chianti” in connection with a wine originating
from anywhere else than that Italian region, even in a generic fashion.
On the other hand, the word “Port” is not prohibited per se. This
comment comes with an important caveat: it must also satisfy the rules
regarding descriptiveness, which we shall see a little further.
Certification marks (Sections 23 to 25 TMA)
Alcoholic beverages can otherwise be
protected, if relevant, as certification marks. An important difference
between a certification mark and a conventional trade-mark is that the
former cannot be used by its owner. The owner is however responsible
for granting licenses for the right to use the certification mark. Such
a license can only be granted to manufacturers that meet the conditions
of production associated with beverages such as their origin from a
defined geographical area. This type of protection in intended to
insure that any beverage bearing the certification mark is “certified”
as meeting the required standards and/or that it was produced in a
specific territory. This form of protection is not limited to wines and
Aside from the above distinction, a
certification mark is required to meet the same criteria as regular
trade-marks, in particular the rules relating to descriptiveness.
However, in a case where the mark is
considered to be “descriptive” of the place of origin of the
beverages, registration will nonetheless be possible if the
owner of the certification mark is an administrative authority or a
commercial association located within the concerned area.
Example: A mark comprising the words “Québec Ice
Cider” could technically be secured as a certification mark for ciders
originating from Québec so long as the applicant is located in the
Province of Québec and has the legitimate authority
to represent producers thereof. In addition, specific manufacturing
standards would have to be outlined upon filing the initial application
Descriptiveness - Place of Origin
(Section 12(1)(b) TMA6)
A third matter to be aware of prior to
adopting a trade-mark for alcoholic beverages is the prohibition
against the registration of marks that are “clearly descriptive or
deceptively misdescriptive”. This requirement finds its source in one
of the guiding principles of Trade-mark Law: to prevent one single
merchant from acquiring a monopoly on words that are generic to an area
of business, the effect of which would be to impede legitimate
competition. Over the years, a general consensus emanating from case
law has established guidelines for determining when the prohibition
A mark for beverages would be considered to
fall under the prohibition of being descriptive of the place
of origin of the products if as a matter of first impression, a purchaser of
the beverages would perceive the trade-mark as being the place where
said beverages originate from, then a serious objection to registration
can be expected. The following points will be relevant:
If the place in question is where the associated
said area, region or country has an established reputation as a source
of production of the beverages with which it is associated; or
the place is widely recognized as a manufacturing, trading or
industrial center and a likely source of a wide variety of products.
On the other hand, if it is found that the
beverages do not emanate from the geographical area referred to by the
submitted trade-mark, then an objection can also be raised, this time
on the basis that the mark is found to be deceptively misdescriptive of
the said place of origin.
Part 2 of this article will be
published in the next
issue of Info-CRAC.
Should you have any questions regarding
trade-marks in general or would like to further explore the
afore-mentioned subject, please do not hesitate to contact CRAC’s
1 Trade-marks Act
(R.S.C., 1985, c. T-13).
2 Sections 11.14 and
3 The World Trade Organisation (WTO) as established
the Agreement on ”Trade Aspects Relating to Intellectual Property”
4 Section 11.12(1) TMA
5 List of
Geographical Indications for Wines and Spirits – To view click
12(1) TMA: Subject to section 13, a
trade-mark is registrable if it is not […]
(b) whether depicted, written or
sounded, either clearly descriptive or deceptively misdescriptive in
the English or French language of the character or quality of the wares
or services in association with which it is used or proposed to be used
or of the conditions of or the persons employed in their production or
of their place of origin;
Resolutions for 2014
at the Registraire des entreprises du Québec (“REQ”): Name granting guide
and registration of commercial trusts
A new name granting guide
REQ employees have compiled a new company name
granting guide. This guide is said to be presently in REQ’s hands,
which will need to meet with its colleagues from the Office québecois
de la langue française before the guide enters into force. It is also
scheduled that this guide be distributed for comments to certain
renowned research specialists in Québec, among them Denis Livernoche,
Manager of name searches at CRAC.
Although no release date has yet been
announced, the guide is scheduled to be completed in 2014.
The Registraire has scheduled the release of
the following articles and paragraphs of the Act Respecting
the Legal Publicity of Enterprises (CQLR c. P-44.1): 21(8),
33 in fine, 35.1., for July 1, 2014.
This means that as of that date, any trust
operating a commercial business in Québec will have to register with
the Registraire des entreprises.
It has to be noted that it will not be
possible to register commercial trusts online, but only through paper
Did you know? – Automatic translation of the
Québec register for our English-speaking clients!
Do your Anglophone clients ever need a French
version of their information statement with the Registre des
entreprises du Québec? We have a solution for you!
Our employees can translate the information
statement of your files for only $27.00*. We can
also add your logo without any additional cost on the translated
For further information on this service,
please contact Me Pierre Bilodeau at 514-861-7953.
*Rate for a document of 3
pages or less. Fees of $1.50 per additional page apply. Rates do not
Record time reached
by the REQ for incorporations
Since last February, our Incoweb®
platform has qualified for
the transfer of B2B incorporation requests with the Registraire des
entreprises du Québec (“REQ”). We are happy to announce that the
running-in period by the REQ has now been completed. This means that
our clients can currently benefit from a much shorter treatment time
for their applications for incorporations made through our Incoweb®
In fact, if the REQ maintains its present
pace, it will be possible for us to obtain your electronic certificates
of incorporation in less than 24 hours for any requests transmitted via
It must be noted that the REQ is now exploring
the possibility of extending the data transfer in B2B mode to other
services in the course of 2014. We will keep you informed of any
relevant development in this regard!
We remind you that for several years now,
Incoweb® has already been
offering processing time of less than 24 hours to obtain federal
certificates of incorporation.
For further information, please contact Kelly
Cardoso by telephone at 514-861-2799, ext. 329 or by e-mail at
(*) An additional
delay may however occur in the administrative treatment of initial
declarations. Furthermore, we remind you that our delays are subject to
the level of business and availability of REQ personnel during this
Is it possible for
the last remaining incumbent director to resign?
Me Patric Besner (Besner, Avocats
d’affaires) – November 22, 2013
Your client is the last remaining / only
incumbent director of a joint stock company (“JSC”) and wishes to
resign. Can he/she resign without a substitute to succeed him/her?
The Registraire des entreprises du Québec’s
(“REQ”) online services and Corporations Canada do not allow a director
to resign unless a new person is appointed at the same time.
If you contact these services by telephone to
ask the question, you will receive various replies. For example: (i)
since the statutes prescribe a minimum number of directors, the
corporation does not have the right to go below this minimum limit and
the resignation of the last remaining director is therefore
inadmissible, if nobody replaces him/her, (ii) “at least one director
or a director of the property of others must exist”, etc.
For many professionals, these types of
administratively imposed replies may result in generating the
impression that in fact the last remaining incumbent director cannot
rightly resign without having a replacement.
No legal reason justifies the refusal of their
electronic platform to register the resignation of a last remaining
There is no provision that prohibits a
director from resigning if he/she is the only person serving on a board
of directors. Even more so, the Canada Business Corporations
Act (“CBCA”) and the Québec Business Corporations
Act (“QBCA”) specifically mention1 that
a director’s mandate ends in particular at the moment of his/her
resignation. Furthermore, both the CBCA and the QBCA expressly provide
for the possibility that a JSC may find itself without a board of
directors2 – by prescribing that the
shareholders can call for an extraordinary general meeting to elect a
new one. It must be noted that this is not an obligation.
It is absolutely legally possible for an only
or last remaining director of a JSC to resign from his/her functions.
The REQ and Corporations Canada should therefore review their online
registration procedures to take into account the legal status of this
matter. The JSC without its last remaining director will thus certainly
find itself in a very particular situation and it will be the
responsibility of the shareholders to elect a new board of directors or
to take over the director role itself through unanimous vote, but the
situation is not illegal – neither for the company and even less so for
the last remaining director who wishes to resign.
It is still possible, both with the REQ and
with Corporations Canada, to proceed with the resignation of the only
or last remaining director of a JSC without the appointment of a
replacement director by filling in a paper form (i.e. CBCA: form 6 and
QBCA: form RE-400). The processing of this transaction will require
several days and at times some telephone or written intervention.
It is recommended that you inform the client
that, after the last director has resigned, any person acting in effect
"as a director" of the JSC may be considered as a de facto3
director, who will thus assume all the civil, statutory, fiscal and
penal responsibilities normally held by the directors.
It is therefore possible for the last
resigning director to validly resign. The point in time of such a
resignation by the only or last remaining director is a question that
is not addressed in this text.
1 CBCA, art. 108 (1) a) and (2); QBCA, art. 142
2 CBCA, art 111 (2); QBCA, art. 146 (2)
3 See among others: CBCA, art. 109 (4)
Below please find the holiday closings for the
offices of the Québec Enterprise Registrar (“REQ”), Corporations Canada
Tuesday, December 24
Open until noon
Wednesday, December 25
Thursday, December 26
Friday, December 27
Monday, December 30
Tuesday, December 31
Open until noon
Wednesday, January 1, 2014
Thursday, January 2, 2014
To obtain a certificate bearing a date between
December 24, 2013, and December 26, 2013, we must receive your
documents by Tuesday, December 24, before 10:30
The same also applies to users of our online
If you need a certificate to bear the date of
December 31, 2013, and January 1, 2014, we must receive your documents
by Tuesday, December 31, before 10:30 a.m.
Incoweb® users must do the
same for documents transmitted to us online.
Please do not forget to specify the required
date in your cover letter or on the articles, as the case may be. We
will tend to your special requests regarding your documents and remain
at your disposal for any questions that you may have.
IMPORTANT: Please note that the above is not applicable
for Certificates of Attestation. Please contact Kelly Cardoso (ext. 329) at
514-861-2799 / 1 800-361-5744 or by email at
email@example.com if you need to obtain a specific date on your
Certificates of Attestation.
“Kit” for new notaries
CRAC has prepared a “kit” for new notaries at
an unbeatable price. This set is offered at $255.15 excl.
taxes (regular price: $315.00).
The “kit" contains:
the first notary’s register,
colour of your choice (pink, black, blue, grey, burgundy, purple), with
a personalised inscription on the register’s spine;
a personalized seal with the Québec coat of
a roll of 500 self-adhesive seals, colour of
a box of 500 sheets of prestige notarized
paper 100% cotton, adjustment of your choice, and
a packet of 25 blue corner tabs
To order, please contact our corporate
accessories department at 514-861-2722 / 1-800-361-5744 (ext. 345 or
346) or by e-mail at firstname.lastname@example.org
What’s new with us…
Babies, babies, babies!
Franca Noto, Searches and Registrations
Department Technician, is happy to announce the birth of Dominik, her
first baby, born September 20th.
Joanna Jacobson, Manager of the Searches
& Registrations Services Department and the Bank Act, has added
a third little girl, Rebecca, to her family on October 2nd.
On November 9th of this
year, Madeleine Cadieux (Corporate Services Manager) and
Charles-Frédérick officialised their 12-year relationship during a
personalized, informal and warm ceremony. The celebration lasted the
entire weekend during which the happy couple was surrounded by their
respective families, close friends and their two little girls.
Our annual picnic was held on September 14th
at the "Domaine Meloche" at Deux-Montagnes. Our host, Stéphane Meloche
(Internal Systems Support) kindly invited us to his home to welcome the
CRAC employees along with their spouses and children. About forty
persons gathered to taste the traditional barbecue hotdogs and to enjoy
different games: darts, bean bag toss, croquet, flip-flop and washer
toss. The day was festive, completely relaxed and a pleasure for all
those present, big and small!
Once again this year, our team members were
invited to use their imagination and audacity in the contest for the
best Halloween costume. A day full of surprises!
Competition was fierce to determine the best
three costumes. Here is the result of this year’s votes:
1st place: Laurence
“bubble gum” St-Aubin
2nd place: Pascale
“black swan” Simard
3rd place (tie): Denis
"hippie” Livernoche and Stéphane “Stéphanie” Day