Sweet trademark victory for the kings of herbal bitters “Jägermeister”

On 24 September 2025, the EUIPO Board of Appeal issued an interesting decision regarding the ground of opposition based on the earlier mark’s reputation (Article 8(5) EUTMR). For the following signs, the EUIPO upheld the opposition:

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1. Background

The opposition against “Alten Kräuterfrau” was examined a first time by the Opposition Division on 21 December 2021. The owner of “Jägermeister” had based the opposition both on likelihood of confusion between the signs (Article 8(1)(b) EUTMR) and the existence of a reputation of their mark in Germany (Article 8(5) EUTMR). The opposition was originally rejected: although a remote conceptual similarity could be found, the signs were dissimilar. However, the Board of Appeal annulled this first decision and remitted the case back to the Opposition Division, stating that since there was a finding of a remote conceptual similarity between the signs, the Opposition Division should assess the further requirements of Article 8(5) EUTMR. On 3 January 2025, the Opposition division re-examined the case and this time decided to uphold the opposition on the ground that “Alten Kräuterfrau” would take unfair advantage of “Jägermeister”’s reputation.

2. The decision

The Board of Appeal confirmed the decision of the Opposition Division, with the following reasoning:

1. Existence of a reputation

The earlier mark “Jägermeister” possesses a reputation in Germany with regard to herbal spirits. This finding is backed by the provision of material showing that the owner of “Jägermeister”, who has been using the mark for the better part of 90 years, has a market share of 38% in the “Bitter” category in Germany, way ahead of all their competitors: the second largest manufacturer only has a market share of 15%.

2. Similarity and existence of a link between the signs

The Board agreed with the Opposition Division in finding that there was no visual and phonetic similarity between the signs, but that a remote conceptual similarity exists. This is due to part of the German public associating both signs with hunting: some will interpret the depicted male human head in the contested sign as that of a hunter, while the deer head shown in the older sign along with the term “Jägermeister” (translating to “master hunter”) evokes the hunt.

While only remote, this conceptual similarity is enough to warrant the application of Article 8(5) EUTMR. Combined with the earlier mark’s high degree of reputation and the resemblances in the overall arrangements of both signs (such as the use of the gothic font and similar colours), this creates an association between the signs.

3. Risk of injury

The fact that both signs are used on identical products targeting the same consumers and in the same channels makes it clear that “Alten Kräuterfrau” could profit from the attractiveness of “Jägermeister”. Consumers would easily believe the “Alten Kräuterfrau” products to be of the same quality as the “Jägermeister” products. Thus, the goodwill of “Jägermeister”, obtained through years of demonstrated efforts, would unduly be transferred to another undertaking.

4. Absence of due cause for use of “Alten Kräuterfrau”

The applicant may escape the opposition if there is “due cause” for them to use the contested sign. Here, the applicant argued that the younger sign merely adopted the appearance of a label for a typical German bitter. The Board found it unconvincing. Worse: this “traditional German style” was actually… mostly created by “Jägermeister”! This finding relies on the market share and long-standing use of “Jägermeister” for bitters in Germany. Therefore, copying this style cannot be seen as a due cause.

3. Comment LexDellmeier

When comparing the signs at hand, it is unlikely that many would believe the products concerned to originate from the same undertaking. Likewise, the idea that part of the German public would associate the “Alten Kräuterfrau” sign with the hunt seems relatively far-fetched.

Nonetheless, this decision illustrates that the smallest possible similarity between signs may be enough to uphold an opposition, as long as the earlier mark enjoys a strong reputation. It is also worth noting that in this instance, the marks were applied to identical goods, and this circumstance was explicitly given by the Board as a factor to identify a link between the signs. The decision may have been different if the goods were only similar.

Overall, trademark owners investing heavily in their brand will be pleased to see that the EUIPO favours such undertakings and rewards businesses that carefully grow and manage a good reputation for their products. In the specific field of German herbals, competitors will definitely think twice before trying to ride on the coattails of “Jägermeister” again.