in IE8 and any browser that doesn't support @font-face, you would expect to see a tiny font-size of 4px. (Modernizr in this case should apply a no-fontface class to the HTML element)
IE 8 does support @font-face
– so expecting Modernizer to not set that class is just where you are going wrong here.
The caveat is that IE < 9 only supports fonts in EOT format – so see to it that you embed that version in your font embedding as well;
Or use a CSS selector that applies your custom font only if the lt-ie9
class that you set for your html
element via conditional comments is not present, something like
html:not(.lt-ie9) .fontface nav li a { /* … */ }
(IE only supports the :not()
selector from v9 on anyway.)