Supreme Court rules "Bimbo QSR" name has racist connotations — a sign of shifting cultural values shaping global trademarks.
Luca Hitz
Legal Partner
Philipp Stadler
Senior Legal Associate
The globally active Mexican food company Bimbo applied to extend the protection of its trademark Bimbo QSR to Switzerland. The Swiss Federal Institute of Intellectual Property (IGE) rejected the application on the grounds that the term ‘Bimbo’ has a deeply pejorative and racist connotation for people of color people (not to be mistaken for the English meaning of a young woman considered to be attractive but not intelligent). The decision was upheld by the Federal Administrative Court. The applicant appealed to the Federal Supreme Court. The Federal Supreme Court dismissed the appeal.
Symbols that Offend against Good Manners
Signs that are contrary to public policy, accepted principles of morality or applicable law are subject to the absolute grounds for exclusion under Swiss trade mark protection law (Art. 2 let. d TmPA). The absolute grounds for exclusion exist independently of other trade marks already in use and are examined ex officio when a trade mark application is filed.
The decisive criterion for assessing whether an absolute ground for exclusion applies is the perception of the average addressee in the relevant public in Switzerland. From the point of view of this public, the question is how the mark to be registered will be perceived and interpreted, with the overall impression of the mark being the decisive factor. Case law defines public decency as the prevailing morals, i.e. the ethical principles and values recognised by broad sections of the population. These are unwritten norms. The objects of protection of public decency include social peace and respectful interaction among fellow citizens. In trade mark law, signs are considered to be immoral if they are likely to offend the socio-ethical, moral, religious or cultural sensibilities of broad sections of the population, although the latter criterion should not be used to undermine the protection of minorities. Signs with content that is discriminatory or racist, anti-religious, pornographic, sexually offensive or otherwise offensive to human or animal dignity, for example, are considered to be contrary to good morals. The interests of the affected public are paramount. The immorality must be evident from the sign itself or from the reference to the products or services for which protection is sought. According to the Federal Supreme Court, however, the commercial use of the sign alone can also constitute an infringement of public morals.
The perception of what is understood by ‘good morals’ is subject to constant change. The Federal Administrative Court also argues in a similar way with regard to sexually offensive signs. Current affairs must be taken into account when assessing whether a sign is contrary to good morals. In particular, a liberalisation can be observed in the area of sexuality, which means that it is quite possible that signs that were once considered immoral would no longer be considered sexually offensive by today's standards. On the other hand, in a growingly multicultural society, a more sensitive attitude towards respect for religious feelings can be observed in comparison to the past.
Federal Court ruling on ‘Bimbo QSR’
In the ‘Bimbo QSR’ case, the Federal Supreme Court ruled that the term ‘Bimbo’ has a ‘deeply pejorative and racist’ connotation for dark-skinned people in the minds of German-speaking people (who are among the relevant target audience). Various dictionaries are consulted for a grammatical interpretation of the relevant norms. The fact that the term is not listed in a specific Swiss German dictionary does not change this, nor does it allow the conclusion that the understanding of the term in Switzerland differs from that in Germany. The fact that the Italian meaning of ‘bimbo’ (= small child) is unobjectionable does not change anything either, since it has not established itself in German-speaking Switzerland and therefore it cannot be assumed that the pejorative character of the term will be lost.
The ambiguity of the term could not change this either. The racist and pejorative nature of the term ‘Bimbo’ resulted precisely from its ambiguity. On the one hand, it refers to a weak-willed, unqualified henchman, and on the other, to a person with dark skin. The combination of the elements ‘Bimbo’ and ‘QSR’ as an overall impression does not change this disparaging character. Rather, it reinforces the association with a restaurant where ‘Bimbos’ serve the guests, thus underlining the discriminatory connotation of the term.
The decision shows, how language change can affect trademark protection.
