Supreme Court confirms Oatly’s 'POST MILK GENERATION' trademark is invalid for oat‑based drinks

Earlier this year, the Supreme Court handed down a landmark judgment confirming that Oatly’s trademark ‘POST MILK GENERATION’’ is invalid when used for oat‑based food and drink products (Oatly AB -v- Dairy UK Ltd [2026] UKSC 4). The decision resolves years of litigation concerning the use of dairy related terminology by plant‑based brands and provides important guidance for food and drink producers. The ruling will be welcomed by the dairy industry which has secured continued exclusive use of core dairy terms in the marketplace.

Background

Oatly applied to register the trademark ‘POST MILK GENERATION’' ('Trade Mark') with the UK Intellectual Property Office ('IPO') in 2019 seeking protection for use on T‑shirts and oat‑based food and drink products. The Trade Mark was successfully registered in April 2021. Later that year Dairy UK Ltd (Dairy UK) challenged the registration arguing before the IPO that it was invalid under sections 3(3)(b) and 3(4) of the Trade Marks Act 1994 ('1994 Act').

In January 2023 the IPO found that although the Trade Mark was not deceptive, it was still prohibited under Article 78 of the 2013 Regulation (EU) No 1308/2013 ('Regulation'), which sets the EU‑derived rules on the use of dairy‑related terms such as ‘milk’, and therefore invalid under section 3(4) of the 1994 Act. This was because the IPO found that using the word ‘milk’ in the phrase amounted to a prohibited ‘designation’ under the Regulation, meaning it used a protected dairy term in connection with a non‑dairy product (which the rules expressly forbid).

Oatly appealed to the High Court, which held that a term only counts as a ‘designation’ under the Regulation if it directly describes the product itself. Since ‘POST MILK GENERATION’’ did not do that, the High Court concluded it was not a ‘designation’ and therefore was not caught by the prohibition.

The Court of Appeal later overturned that decision holding that the trade mark was a ‘designation’ and was prohibited under the Regulation.

The Supreme Court’s decision

The case before the Supreme Court was an appeal by Oatly of the Court of Appeal’s decision. Oatly argued first that ‘POST MILK GENERATION’’ was not a ‘designation’ at all, and alternatively it fell within an exception allowing terms that clearly describe a characteristic quality of the product. The Supreme Court was therefore required to determine whether the phrase ‘POST MILK GENERATION’ could constitute a prohibited ‘designation’ of milk under the Regulation when used on non‑dairy products.

Dairy UK argued that the term ‘milk’ is legally reserved for animal‑derived products under Annex VII, Point 5 of the Regulation, and that using ‘POST MILK GENERATION’ for oat‑based drinks amounts to using a protected dairy term for a non‑dairy product.

Oatly advanced two key arguments:

1. ‘Milk’ was not used as a ‘designation’ of the product. Oatly argued the phrase was a slogan, not the product’s name or descriptor, and therefore fell outside the Regulation’s prohibition.

2. Even if it was found to be ‘designation’, it fell within an exception under the Regulation which allows prohibited designations if they clearly describe a characteristic quality of the product. Oatly argued the phrase signalled the oat‑based, non‑dairy nature of its drinks.

The Court unanimously dismissed Oatly’s appeal and restored the finding of invalidity. The key reasons given were:

1. The Supreme Court explained that a ‘designation’ is not just the official name of a product. It covers any use of the word ‘milk’ in connection with food or drink. As such, even if the word ‘milk’ appears in a slogan or branding, and not as the product’s name it can still breach the rules if the product is not actually dairy. Therefore, using ‘milk’ within a slogan for non‑dairy goods amounted to a prohibited designation.

2. The Supreme Court found the phrase did not clearly describe a characteristic quality of oat‑based drinks. Instead, it targeted a demographic (‘a generation’) rather than describing the product.

However, the Supreme Court confirmed that the trade mark remains valid for T‑shirts. This is because when used on clothing it is more akin to a brand, rather than describing the ‘characteristic quality’ of the product specifically.

Comment and practical considerations

1. Plant‑based brands must avoid dairy (or similar) terminology

   This ruling confirms a strict approach to dairy‑term protection. Even indirect or slogan‑based uses of ‘milk’ risk invalidity. Marketing and brand naming should be reviewed to ensure compliance. Whereas advertising restrictions are already significant and determinative in many cases, the Supreme Court has gone beyond those restrictions in order to scrutinise the registered trade mark on similar grounds too. This decision will inevitably impact on and lead to greater scrutiny within the plant based and alternative product industry as a whole, and so it is worth all plant-based brands (and not just those providing diary alternatives) taking a cautious approach to a review of their branding.

2. EU‑derived rules can remain robust post‑Brexit

   Although Brexit removed EU law supremacy, dairy‑designation rules remain assimilated into English law and are being applied rigorously. Clients must continue to consider these restrictions in brand strategy out of an abundance of caution.

3. Risk of challenges from trade bodies

   This shows that it is not just competitors who might challenge a trade mark. Industry bodies can also step in if they believe a brand is breaking rules that affect the wider public or the sector as a whole. We are likely to see an increase in such behaviour post-Oatly.

For further information/assistance with IP issues, please contact Laura Scott, Lauren Adams and Hassan Haider.

This article was co-authored by Trainee Solicitor, Hassan Haider.