-Martha Engel, Attorney
The word “Jägermeister” conjures up memories (or maybe lapses in memory) for many. I have only had the German liqueur in the beautiful blue-collar town of Milwaukee, WI – home of my college alma mater. While you would never catch me ordering the liqueur, I was fascinated by the cool and well-lit dispensing machine behind the bar that kept the product at a desirable serving temperature.
Milwaukee is also home of the Milwaukee Bucks professional basketball team, which plays at the Bradley Center downtown along with my Marquette basketball team. Both teams are gearing up to move from the Bradley Center to a new home. In April 2015, the Milwaukee Bucks did a brand refresh and unveiled an updated logo with a more aggressive looking deer on a partial circular background.
Here’s a look at the progression of the Bucks’ logo since their inception in 1968 (a progression which appears to create its own commentary on our society):
The owners of Jägermeister have opposed registration of the Bucks’ new logo above on the right in connection with entertainment services based on their well-known Deer Head mark, which they have registered in most classes. They may have a point – well, a similar 12-point buck to be more precise as the dominant portion of the mark.
While the filing of an opposition proceeding does not mean that the Bucks necessarily have to cease using the mark, the lack of registration may conflict with the Bucks’ agreement with the NBA. As with most professional sports associations, this agreement likely requires registrations for marks, as well and representations and warranties that the mark will not infringe on any rights of others. The Bucks likely would have to cease using the mark – and the owners of Jägermeister would likely demand it as well.
Surprisingly, Jägermeister did not oppose the Bucks’ application for the same mark with respect to various apparel goods in class 25, despite Jägermeister having registrations for similar if not identical apparel goods. That application was allowed although the Bucks’ are still seeking extensions of time to confirm use of the mark on all of the listed apparel goods.
A brand refresh (or a rebrand) often involves updating original elements of a brand identity to give it a contemporary look and tone. Creative types tasked with this important work should still be cautious about treading on the rights of others, even if the dominant elements of the mark have been used for a long time. You can rely on the long term use of some of these key elements to some extent, but adjustments even to these elements may create a likelihood of confusion despite years of overlapping use of the old identity without such concerns. Working together with legal types proactively can help prevent situations like this when rebranding.
It’s highly unlikely that the Bucks would have to cease use of a forward-facing buck all together based on Jägermeister’s contentions. The Bucks here may be able to make some tweaks to get back into their lane and avoid drawing a foul, such as reducing the points on the antlers from 12 back to the previously used 8 and making some changes to the background while still modernizing the look. Otherwise, we may be watching this battle on and off the court for awhile.
Do you think the Bucks have an issue here?