Swedish dairy alternatives maker Oatly has been told it cannot use its ‘Post Milk Generation’ trademark on the packaging of its products because the line contains the dairy descriptor ‘milk’.
The ruling, delivered by the Court of Appeal in London, UK, in November, explains that Oatly’s trademark offends against both British trade mark regulations and the EU’s Article 78(2) of Regulation No 1308/2013.
The latter defines milk as ‘the normal mammary secretion obtained from one or more milkings without either addition thereto or extraction therefrom’ and says that the term ‘milk’ may be used to describe products ‘derived exclusively from milk’; with descriptors such as whey, cream, butter and yogurt among others also ‘reserved exclusively for milk products’.
While Oatly can still appeal the decision at the UK Supreme Court, the Court of Appeal ruling is binding on all other courts and has wider industry implications – essentially making it illegal for any alt dairy brand to use dairy descriptors for marketing purposes in the UK market.
The Court of Appel decision also supports a 2019 Intellectual Property Office call that found Oatly’s trade mark to be invalid as it was deemed ‘deceptive’ in relation to oat-based products, contrary to section 3(4) of the Trade Marks Act 1994.
Oatly had successfully appealed IPO’s decision in High Court in 2023 – but has now lost the appeal brought forward by Dairy UK, the body representing British milk processors.
Industry reaction
Dr Judith Bryans, chief executive of Dairy UK said the trade body was ‘delighted’ with the ruling.
“This unanimous decision reinstates the Intellectual Property Office’s original decision, which declared the trade mark invalid for oat-based products,” she said in a press statement.
“This ruling clarifies the legal protection of dairy terms, according to which the term ‘milk’ is reserved for dairy milk, except in defined circumstances.
“At the heart of the legal matter was whether these rules extend to trade marks, and the Court of Appeal has now confirmed this to be the case.”
Oatly meanwhile is ‘considering its options’, we learned.
“Disappointingly, this ruling overturns the common sense we saw from the High Court earlier this year when they ruled in our favour,” Bryan Carroll, General Manager for Oatly UK & Ireland, told DairyReporter.
“Be under no illusion that making it harder to label and find dairy alternatives benefits the interests of Big Dairy and Big Dairy alone.
“Their cynical attempts to stifle competition through legal action contradicts the interests of the British consumer, creates an uneven playing field for plant-based products and worst of all: it delays progress in shifting the public towards more sustainable diets.
“We will always stand up for what is right and we are considering our options.”
Marisa Heath, chief executive of the Plant-based Food Alliance – a coalition of organisations in the UK’s plant-based food and drink industry that Oatly is a member of – suggested the judgement was not in consumers’ best interest.
“We don’t believe the judgement is in the best interests of consumers and that should be the key priority. The term ‘dairy designation’ clearly has too wide an interpretation and Oatly are not calling themselves milk – they are saying they are ‘post milk’.
“I think this is a waste of time and we should be focusing on producing better and more sustainable food to tackle to issues facing us globally around climate change and health.”