The UK Supreme Court has ruled Oatly’s “Post Milk Generation” trademark breaches EU laws that still apply in the country.
The court, the highest in the UK, agreed with dairy-industry trade association Dairy UK that the trademark should be prohibited under EU rules dating from 2013 that have been retained in the country since Brexit.
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The verdict, handed down today (11 February), follows a four-year trademark battle between dairy-alternative group Oatly and Dairy UK.
In 2019, Oatly applied to register “Post Milk Generation” as a trademark in the UK to be used on oat-based products and t-shirts.
In April 2021, the UK’s Intellectual Property Office (IPO) registered the trademark.
However, later that year, Dairy UK filed an application with the IPO to declare the trademark invalid, pointing to EU law that controls when “designations” such as “milk” can be used on products.
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By GlobalDataThat law, assimilated into UK legislation since Brexit, states the “designation” of “milk” is defined as “exclusively the normal mammary secretion” from milking.
In January 2023, the IPO concluded Oatly’s trademark was not deceptive but said it was prohibited under the 2013 regulations. The office granted the trademark for T-shirts but refused it for food and drink.
Oatly appealed to the High Court, which overturned the IPO’s decision. The High Court said a term is only a “designation” under the 2013 regulations if it is a generic description of the product. Oatly’s trademark, the High Court ruled, was not and was therefore not prohibited.
However, in another twist, the Court of Appeal disagreed with the High Court, arguing Oatly’s trademark did breach rules, prompting the Sweden-based business to petition the Supreme Court.
Oatly’s argument at the Supreme Court was the “designation” of milk under EU rules concerns the name of a product. The company said the “Post Milk Generation” trademark was not being used to name the product and did not break the “designation” regulations.
The business also argued the trademark met EU rules as it was a marketing term to describe a characteristic quality of a product – in this case that Oatly’s products are milk-free.
The Supreme Court disagreed. “The Supreme Court unanimously dismisses Oatly’s appeal,” the court said in a press statement. “The Supreme Court holds that ‘Post Milk Generation’ does use the term ‘milk’ as a ‘designation’ within the meaning of Point 5 of the 2013 Regulation and it is not clearly being used to describe a characteristic quality of the contested products. The trademark is therefore invalid when used in relation to oat-based food and drink.”
Commenting on the decision, Bryan Carroll, Oatly’s general manager for the UK and Ireland, said: “At Oatly, we will always stand up for what is right, and in our view prohibiting the trademarking of the slogan ‘Post Milk Generation’ for use on our products in the UK, is a way to stifle competition and is not in the interests of the British public.
“This decision creates unnecessary confusion and an uneven playing field for plant-based products that solely benefits Big Dairy.”
Just Drinks has approached Dairy UK for comment.
