New rules for the post-milk generation: Oatly’s trade mark appeal dismissed by the Supreme Court

The UK Supreme Court has unanimously dismissed an appeal by plant-based drinks manufacturer Oatly to register the phrase "POST MILK GENERATION" as a trade mark for its oat-based products.

The Court held that using the word "milk" in this context breached strict rules protecting dairy terminology, creating a risk that consumers could be misled about the nature of the products.

By drawing a firmer boundary around protected food terms, the decision is likely to influence how plant-based and alternative-protein brands present and market their products across the UK. Brands operating in these sectors should be prepared to reassess the language and messaging used across their branding.

Background

Oatly, a Swedish company known for oat-based dairy alternatives, registered the trade mark "POST MILK GENERATION" in the UK in 2021 for goods oat-based products.

Dairy UK, the trade association representing the UK dairy industry, challenged the validity of the registration under section 3(4) of the Trade Marks Act 1994, which precludes a trade mark from registration where its use is prohibited in the UK by any enactment or rule of law.  Dairy UK argued that such a prohibition was contained in EU Regulation 1308/2013 governing the use of dairy designations, specifically rules that restrict the use of terms such as "milk" to goods that come from animals

The UK Intellectual Property Office agreed in the first instance, finding the mark invalid for oat-based goods. Oatly appealed successfully to the High Court but the Court of Appeal reversed that decision. Oatly then appealed to the Supreme Court.

The Supreme Court decision

The central issue before the Supreme Court was the meaning of “designation” within the Regulation. Oatly argued for a narrow interpretation limited to the name of a food or drink so that marketing expressions or broader brand messaging would fall outside the prohibition. The Court rejected that approach. It confirmed that “designation” carries a broader meaning and includes any term used in respect of a food or drink, not just its product name. On that basis, using the word “milk” within the phrase “POST MILK GENERATION” for non‑dairy goods constituted a prohibited designation.

Oatly advanced a fallback argument: even if “milk” was a designation, its use should fall within an exception permitting such terms where they clearly describe a characteristic quality of the product; here, that the oat drink contained no milk. The Supreme Court dismissed this argument as well. It held that the mark did not clearly convey any product characteristic and instead operated as consumer‑targeted messaging rather than a descriptive statement about the composition of the goods.

The outcome is that the mark remains invalid for oat‑based food and drink products.

Key takeaways

• A broad interpretation of "designation": The Court confirmed that the prohibition on using dairy terms is not confined to product names but can be extended to wider use like marketing language, slogans and other forms of brand messaging. This approach strengthens the protection afforded to traditional dairy terms.

• No scope to use "milk" for non-dairy goods: For the purposes of trade mark registration and use, businesses selling products that are not dairy products as defined in the Regulation cannot incorporate “milk” into their branding. Instead, they may need to rely more consistently on neutral terminology such as "oat drink" or "plant-based drink".

• A strengthened position for the dairy sector: For dairy industry stakeholders, the ruling provides an additional enforcement tool. It may be used to oppose applications or to challenge use of trade marks incorporating “milk” where the goods fall outside the statutory dairy definition.

• Wider implications for plant-based branding across the sector: Any business operating in the dairy or dairy‑alternative drinks market will need to reassess trade mark strategies and marketing language. Expressions that borrow from dairy terminology now carry a materially heightened risk of refusal or challenge in the UK.