Montreal, January 21st, 2011

Registraire des entreprises
P.O. Box 1364
Quebec, QC, G1K 9B3
att'n: Jocelyne Nadeau


Subject: Contestation of decision: Request to register "Topless Montreal", Qc Bus No: 2240196867


Madame, Monsieur,

I hereby contest the decision rendered on December the 2nd, 2010 by Jocelyne Nadeau of the Quebec Business Registry (REQ). [0]

I was advised that the request for registration of the business name "Topless Montreal" was refused based on Article 13 (3) of "R.S.Q., chapter P-45: An Act respecting the legal publicity of sole proprietorships, partnerships and legal persons". The article reads "No registrant may declare or use in Québec a name which includes an expression that evokes an immoral, obscene or offensive notion;". [1]

The decision is unfounded in fact and in law for the reasons that follow:


1.The grounds relied upon are vague. "Immoral" and 'offensive' have no statutory definition. "Obscene" does not apply:

The Federal Court of Appeal in "Re Lushcer and Deputy Minister, Revenue Canada, Customs and Excise", (1985), 17 D.L.R. (4th) 503 considered what was meant by immoral and indecent. In that case a magazine had been classified under the Customs Act, R.S.C. 1970, c. C.40 as "immoral" or "indecent." It was decided that the words immoral and indecent were impermissibly vague. [2] Article 13 (3) is not legally binding in regards to the word "immoral".

The definition of "obscenity", according to Section 163(8) of the Criminal Code of Canada is set out as "the undue exploitation of sex". [3] There is no sex in toplessness. Section 163(8) reads, "(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene." Since there is no sex, there is no exploitation and the statutory definition of "obscene" does not apply.

There is no statury legal definition for "offensive".


2. The REQ is arbitrary in how it decides which words are permissable. Words that evoke immoral, obscene or offensive notions have been accepted for registration by the REQ before and after the request for Topless Montreal was submitted:

"FUCK ART LET'S KILL" was accepted by the REQ in 2008. [9]

"CRÉATIONS P'TITES FOUFOUNES" was accepted by the REQ on 2010-05-10; 4 months after the first request for the registration of "Topless Montreal" was refused. The dictionary definition of 'foufounes' is, "the slang name for the vagina". [7.1]

"SALLE DE DANSE LES SWINGERS" was accepted by the REQ on 2010-06-10; 5 months after the first request for the registration of "Topless Montreal" was refused. One dictionary definition for 'swinger' is, "a person who engages in the exchanging of spouses for sexual activities". [8.1]

"SKINNY BITCH" was accepted by the REQ on 2010-07-29; 6 months after the first request for the registration of "Topless Montreal" was refused. [11]

. "FUCK" (appears in 2 names registered with the REQ) [9],
. "FCUK" (appears in 1 names registered with the REQ) [10],
. "BITCH" (appears in 1 names registered with the REQ) [11],
. "SHIT" (appears in 2 names registered with the REQ) [12],
. "SEXY" (appears in 285 names registered with the REQ) [4],
. "NUDE" (appears in 5 names registered with the REQ) [5],
. "BURLESQUE" (appears in 7 names registered with the REQ) [6],
. "FOUFOUNE" (appears in 8 names registered with the REQ) [7][7.1]
. "SWINGER" (appears in 6 names registered with the REQ) [8][8.1]


3. The notion of toplessness is completely respectable:

In contemporary Quebec society, a bon pere du famille would not be shocked, offended or outraged by the name submitted. On the other hand, the name "Fuck Art Let's Kill", which is registered, does shock the conscience of the nation.

The decision in "R. vs. Jacob, Province of Ontario Court of Appeal, 1996-12-09" held that the appellant's act in exposing her breasts is within the community standard of tolerance test. [2]


4.The Canadian Intellectual Property Office (CIPO) has granted trade-marks with the word "topless" in them:

1. Trademarks: THE OFFICIAL TOPLESS T-SHIRT, 0852757 [13]
2. Trademarks: TIO TOPLESS IN ONTARIO, 0873423
3. Trademarks: TOPLESS, 0307271, TMA157760
4. Trademarks: TOPLESS IN TORONTO, 0872925
5. Trademarks: TOPLESS NEWS, 1250394, TMA659375
6. Trademarks: TOPLESS, 1057428, TMA572988

CIPO is the federal agency responsible for granting and registering intellectual property rights in Canada. They have deemed the word "topless" to be acceptable.


Conclusion

In light of the facts presented in this letter, I request that the REQ re-evaluate the request to register the name TOPLESS MONTREAL and accept it.

Article 13 (3) of R.S.Q. is two-thirds vague. The only concept that has statutory definition is "obscene" and its definition does not apply to the notion of toplessness.

The REQ's refusal is based on an arbitrary system of choice. It should follow the practice laid out in the Canadian "Community Standard of Tolerance Test".

The notion of Toplessness was judged to be within the "Community Standard of Tolerance Test" by the courts in 1996.

Other government agencies have accepted names with the word Topless in them.


Respectfully submitted,











John M

Street
Montreal
Quebec, Canada
Postal Code






References:

[0] 2nd refusal from the REQ: http://www.toplessmontreal.com/civil-rights/qc-refusal-2.jpg
[1] R.S.Q., chapter P-45: http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/P_45/P45_A.html
[2] R. vs. Jacob, Prov of Ont Court of Appeal, 1996-12-09: http://www.canlii.org/en/on/onca/doc/1996/1996canlii1119/1996canlii1119.html
[3] Criminal Code of Canada: http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec195.1
[4] http://www.toplessmontreal.com/civil-rights/cidreq-sexy.pdf
[5] http://www.toplessmontreal.com/civil-rights/cidreq-nude.pdf
[6] http://www.toplessmontreal.com/civil-rights/cidreq-burlesque.pdf
[7] http://www.toplessmontreal.com/civil-rights/cidreq-foufoune.pdf
[7.1] Definition of foufoune (slang for vagina): http://dictionary.reverso.net/french-definition/foufoune
[8] http://www.toplessmontreal.com/civil-rights/cidreq-swinger.pdf
[8.1] Definition of swinger, re Slang 3a & 3b: http://dictionary.reference.com/browse/swinger
[9] http://www.toplessmontreal.com/civil-rights/cidreq-fuck.pdf
[10] http://www.toplessmontreal.com/civil-rights/cidreq-fcuk.pdf
[11] http://www.toplessmontreal.com/civil-rights/cidreq-bitch.pdf
[12] http://www.toplessmontreal.com/civil-rights/cidreq-shit.pdf
[13] http://www.toplessmontreal.com/civil-rights/cipo-topless.pdf