Swedish drinks maker Oatley has been banned from using the word “milk” to market its plant-based products, following a UK Supreme Court ruling.
The alt-milk maker is in a lengthy legal battle with trade association Dairy UK after Otley trademarked phrases associated with the dairy sector.
The Supreme Court ruled unanimously on Wednesday that Otley can no longer use the trademark or the slogan “Post”. the milk Generation”.
“It took the highest court in the land to decide once and for all whether a plant-based milk substitute can be branded and marketed as ‘milk,'” said Larry Bray, senior associate and trademark attorney at European intellectual property firm Withers & Rogers. “And the result was not what Oatley had hoped for.”
The regulations state that certain words can only be used to refer to the actual products they describe, such as milk, wine and olive oil. Milk is defined as coming from dairy and more specifically from animals.
However, Oatly, which filed a trademark application for the term “post milk generation” with the UK’s Intellectual Property Office in 2019 – which is officially registered in 2021 – argued that the use of the word “milk” in the trademark did not infringe the rules unless it was used in a descriptive manner.
In 2023, After objection from Dairy UKthe IPO ruled that the use of the word “milk” in this way was “misleading”; Otley successfully appealed against the verdict in December 2023, but the decision was overturned by the Court of Appeal, prompting the issue to be taken to the Supreme Court.
“This judgment is an important decision for the sector as it finally provides clarity on how dairy terms can and cannot be used in branding and marketing,” said Judith Bryans, chief executive of Dairy UK. “It brings more certainty to businesses and helps ensure that long-established dairy terms retain a clear meaning for consumers, while allowing appropriate descriptions to be used where the law allows.”
The Supreme Court ruling has wide-ranging changes for producers of plant-based alternatives, and Oatly’s trademark registrations in other European countries may now be challenged by trade groups similar to Dairy UK.
The same provisions apply to provisions derived from other dairy-based products such as cream, butter, cheese and yogurt.
“The safest course for plant-based producers is to use clearly defined alternatives such as ‘oat drink’ or ‘plant-based drink’,” said Richard May, partner at Osborne Clarke. “More broadly, the judgment signals that UK regulators and courts are likely to adopt a stronger approach to so-called ‘category lending’ in regulated sectors. Businesses building brands around legally defined product names, whether in the dairy industry or elsewhere, should consider carefully and plan their brand strategy accordingly.”
In 2021, Cambridgeshire-based Glebe Farm Foods, which specializes in producing gluten-free oats, Trademark infringement won the battle The Oatley brand name was brought about by using PureOT.
