UK Supreme Court Bans Oatly from Using 'Milk' in Plant-Based Marketing
The Swedish-based drinks manufacturer Oatly has been prohibited from using the word "milk" to market its plant-based products, following a definitive ruling by the UK Supreme Court. This decision concludes a protracted legal dispute with the trade association Dairy UK, which had contested Oatly's trademarking of phrases linked to the dairy industry.
Legal Battle Over Trademark and Terminology
On Wednesday, the Supreme Court unanimously ruled that Oatly can no longer trademark or utilise the slogan "Post Milk Generation." Laurie Bray, a senior associate and trademark attorney at the European intellectual property firm Withers & Rogers, commented, "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."
Regulations stipulate that specific terms, such as milk, wine, and olive oil, must only denote the actual products they describe. Milk is legally defined as originating from the dairy sector and, more precisely, from animals. Oatly had initially filed a trademark application for "Post Milk Generation" with the UK's Intellectual Property Office in 2019, which was officially registered in 2021. The company argued that using "milk" in a trademark did not breach regulations if it was not employed in a descriptive manner.
Ruling and Industry Implications
In 2023, after an objection from Dairy UK, the IPO determined that using the word "milk" in this context was "deceptive." Oatly successfully appealed this ruling in December 2023, but the Court of Appeal later overturned that decision, prompting the case to escalate to the Supreme Court. Judith Bryans, chief executive of Dairy UK, stated, "This ruling 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. It brings greater certainty for businesses and helps ensure that long-established dairy terms continue to carry clear meaning for consumers, while allowing appropriate descriptors to be used where the law permits."
The Supreme Court's judgment has broader ramifications for producers of plant-based alternatives. Oatly's trademark registrations in other European countries may now face challenges from equivalent trade bodies to Dairy UK. The same regulatory principles apply to terms derived from other milk-based products, such as cream, butter, cheese, and yoghurt.
Advice for Plant-Based Producers
Richard May, a partner at Osborne Clarke, advised, "For plant-based producers, the safer course is to use clearly descriptive alternatives such as 'oat drink' or 'plant-based drink.' More broadly, the judgment signals that UK regulators and courts are likely to take a robust approach to so-called 'category borrowing' across regulated sectors. Businesses building brands around legally defined product names, whether in dairy or elsewhere, should expect careful scrutiny and plan their brand strategy accordingly."
In a related development from 2021, Glebe Farm Foods, a Cambridgeshire-based company specialising in gluten-free oats, won a trademark infringement battle brought by Oatly over its use of the brand name PureOaty. This underscores the ongoing legal complexities within the plant-based food and beverage industry.
