Oatly ordered to stop milking it by UK Supreme Court as it rules in favour of Dairy UK
Earlier this month, the UK Supreme Court dismissed Oatly’s appeal concerning its trade mark ‘POST MILK GENERATION’, confirming the mark was invalid insofar as it covered plant-based food and drink products. The challenge was brought by Dairy UK, a dairy trade association, which argued that use of the word ‘milk’ in relation to non-animal products breached retained EU Regulation 1308/2013, which reserves dairy designations such as ‘milk’ exclusively for animal-derived products.
Oatly argued that its mark was a metaphorical slogan referring to a cultural shift away from dairy consumption, rather than a literal product description. However, the Supreme Court held that the regulatory prohibition applies broadly to marketing and branding, including trade marks. The Court confirmed that where use of a mark would contravene statutory product-designation rules, it is prohibited under Section 3(4) Trade Marks Act 1994 and cannot validly be registered or enforced. The fact that consumers would understand the reference in context, or that the term appeared within a slogan, did not avoid the prohibition.
It is important to note that although Oatly’s mark ultimately failed, the Supreme Court made noteworthy obiter observations. In particular, the Supreme Court indicated that a different sign expressly qualifying the use of the word ‘milk’ – for example by including wording such as ‘milk‑free’ – might fall within the regulatory exception permitting the term ‘milk’ to be used where it is clearly deployed to describe a characteristic of the product rather than to designate its nature.
Key implications for brand owners
The decision significantly strengthens the link between regulatory compliance and trade mark protection. Brand owners cannot rely on protected product terms – even indirectly or in slogan form – for goods that do not legally qualify for those designations. This increases the risk of refusal, opposition, or invalidity actions against marks incorporating regulated terms such as ‘milk’ for plant-based products.
The ruling also highlights the importance of regulatory clearance alongside traditional trade mark searches when developing new brands, particularly in highly regulated sectors such as food and beverages. Marks that are distinctive from a trade mark perspective may still be invalid if their use would breach labelling laws.
More broadly, the judgment confirms that trade mark law cannot be used to circumvent sector-specific naming restrictions. Businesses operating in plant-based, alternative protein, and other substitute product categories should adopt branding that avoids protected product designations and instead focuses on distinctive or invented terminology.
Overall, the decision narrows branding flexibility in regulated food sectors and underscores the need for early, coordinated legal and regulatory advice when selecting new product names.
If you would like more information or advice on trade mark dispute resolution, please contact one of the authors, Alice Bennett or Catherine Wiseman, or your usual Barker Brettell trade mark attorney.
