Oat drinks are not milks, UK court rules

The UK Supreme Court ruling in Oatly versus Dairy UK, which was handed down on the morning of 11 February, unanimously dismissed Oatly’s appeal, meaning the trade mark is invalid when used in relation to oat-based food and drink. Laurie Bray, senior associate and trade mark attorney at European IP firm, Withers & Rogers, says, “It has taken the highest court in the land to decide once and for all whether a plant-based milk alternative can be branded as ‘milk’ and marketed as such. And the outcome is not what Oatly was hoping for.

“EU regulation is clear that certain terms can only be used to denote the actual products that they describe – for example, milk, wine and olive oil. Milk is defined as ‘the normal mammary secretion’ from milking, ‘without any addition or extraction’. The relevant EU regulation still has effect in the UK, as ‘assimilated law’.

“Oatly argued that the use of the term milk within a trade mark does not fall foul of this regulation if the term is not being used in a descriptive manner.

“The Supreme Court’s decision means that the UK Intellectual Property Office (UKIPO)’s original judgement is reinstated and must now be implemented. Oatly’s trade mark for ‘POST MILK GENERATION’ will be cancelled by the UKIPO, and the company (Oatly) will not be able to use the phrase to market any dairy-free alternatives to milk.

“Oatly owns more than one UK trade mark registration for the mark POST MILK GENERATION and, based on this decision, it seems likely that Dairy UK will now seek to cancel Oatly’s other registrations, at least insofar as they cover milk alternatives. It remains to be seen whether Oatly’s numerous EU trade mark registrations will now face similar action from Dairy UK’s European counterparts.

“The key message for brand owners developing new plant-based products is to remember that plant-based milk alternatives are not milk, and shouldn’t be described or branded as such. The same applies to terms which denote milk-based products, such as cream, butter, cheese and yogurt, all of which are protected under the EU regulation. Alternative phrases such as ‘oat drinks’ are permissible.”