Moving on up (North) – Bringing your App, Website or Product to Canada

“We want to start selling our [app/product/service] in Canada,” says your Digital business executive.  “Any legal problems we should know about?”   Selling an app, product or service in Canada can seem like an easy way for a US company to expand the market for, and revenues generated from, something developed for the US market.  However, there are a number of considerations to consider, both from a legal and business perspective.  Some of them include:

  • Localize for the Canadian Market. As an American, I imagine that Canadians can easily tell whether a product is one designed for the US market being offered in Canada, or is one designed for the Canadian market.  Apps, websites, and services should be localized for the Canada market.  Canadian English is different than US English, and localization something that should not be overlooked.  If there is address information collected or displayed through an app or corresponding website, they should support provinces, Canadian postal codes, etc.  Localization is more than just translation; the app, website or service should be reviewed (ideally by one or more Canadian employees) to identify any pages, language, or content that may need adjusting for a Canadian audience.
  • Bilingual Requirements. The official language of Quebec is French, and many other provinces recognize both English and French as official languages. Websites (and apps) in Quebec are required to be bilingual.  Even without that requirement, it’s a good idea for websites and apps to be bilingual in Canada given the significant number of French Canadian speakers in the country.  Consider translating your license/services agreement and policies into French.  If you make your agreements bilingual, consider using a “dual-column” format so the English and French versions appear next to each other.  Ensure any bilingual agreements contain a provision stating that the parties agree that controlling version of the agreement shall be in the English language.
  • Data PrivacyFrom a legal perspective, Canada has a much more stringent national data privacy law than the US does.  Under Canada’s national data privacy laws, affirmative consent is generally required by consumers for a company to process personal information from Canadian consumers. Many provinces have their own privacy laws for private entities and public bodies. In addition, certain provinces also have provincial data privacy laws that can impact US companies.  For example, British Columbia’s data privacy law governing public bodies prevents any public body in BC from using a cloud-based service that stores data outside of Canada. (This law dates to 2004 and was a backlash against US government access to data under the USA PATRIOT Act of 2001.)  While many BC entities, such as schools, have complained about this law, it’s still on the books in British Columbia.
  • Marketing Communications. In addition, sending commercial electronic messages can be trickier in Canada due to a more complex Canadian law called CASL (Canada’s Anti-Spam Law) that governs commercial electronic messages (not just emails).  We’d want to look at that to see if it had an impact.  For more information, see my earlier post on preparing for CASL compliance.
  • Branding and IP. Companies should look at their branding, trademarks, and other IP used in or in connection with their app, websites, and services.  US trademark registrations don’t help in Canada if someone else is already using an identical or similar brand name in Canada. Dropping your US-branded app into the Canadian market could result in a cease-and-desist letter, or a lawsuit brought in Canadian courts. Patent protection in the US are not enforceable in Canada; you’d need to file Canadian registrations to obtain similar protections.
  • Other Considerations. Other considerations include looking at whether there are any export requirements or restrictions on exporting your product to Canada; whether NAFTA (the North American Free Trade Agreement) comes into play if there are any physical goods being sent to Canada; and ensuring you are complying with any local, provincial, or national tax requirements that may apply.

Before moving on up north, business teams should consider performing a cost/benefit analysis of the potential ROI of entering the Canadian market, evaluating these and other factors, to determine if adapting an app, website and/or service to the Canadian market is a sound business decision.

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