Supreme Court rules Oatly is unable to use ‘milk’ in trade mark

In April 2021, Oatly registered the trade mark POST MILK GENERATION for oat-based food and drink (classes 29, 30 and 32) and T-shirts (class 25). In November 2021, Dairy UK Ltd, the trade association for the UK dairy industry, applied for a declaration of invalidity under section 3(4) of the Trade Marks Act 1994, which mandates that a trade mark shall not be registered if its use is prohibited in the UK “by any enactment or rule of law”.

The law they relied on was the Parliament and Council Regulation (EU) No. 1308/2013 of 17 December 2013 establishing a common organisation of the markets in agricultural products (the “Regulation”) which, amongst many other things, regulates the use of dairy terms.

“Milk” is defined as “exclusively the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom” and the Regulation stipulates that the “designations” of “milk” and “milk products” may not be used for any product other than those referred to in the Regulation such as cream, cheese and butter.

The first question in the appeal was what was meant by “designation”. The Supreme Court agreed with Dairy UK that “designation” has a wider meaning than only the name of a product. Therefore, even though the slogan POST MILK GENERATION was used for marketing the non-dairy milk product and not merely naming it, the use of the work “milk” in this way was prohibited.

Notwithstanding the prohibition, the Regulation contains an exception that would allow use of the term “milk” in relation to non-milk food and drink products if it was “clearly” being used to describe a characteristic quality of the products. On this basis, the second key question was whether Oatly’s use of the slogan POST MILK GENERATION described a characteristic quality of oat-based food and drink.

Oatly submitted that POST MILK GENERATION implicitly denotes the milk-free characteristic of the products and therefore did not breach the Regulation. However, the Supreme Court ultimately decided that “it is far from clear that that trade mark is describing any characteristic of the contested products. Rather, on its face, it is focussed on describing the targeted consumers”. Therefore, the trade mark was deemed invalid.

This decision confirms that when it comes to registration, consideration needs to be given to regulated terms like “milk”, and plant-based brands cannot rely on indirect or allusive language to get around those restrictions. Brand owners need to tread carefully when using regulated terms for marketing impact.

Read the judgment in full here: https://supremecourt.uk/cases/uksc-2025-0004