UK Supreme Court Affirms Ruling That Oatly Can’t Use ‘Milk’ In Its Almond Milk Branding

from the the-almond-bothers dept

Back in 2023, we talked about a strange trademark dispute out of the UK concerning oat-based milk products. Specifically, Oatly, a large producer of oat milk, applied for a trademark in the UK for its slogan, “Post Milk Generation.” Dairy UK, a lobbying organization representing dairy farmers in the country, opposed the trademark in the application stage, arguing that a UK regulation prevented any company from using the word “milk” in conjunction with “products that are not mammary secretions.” Oatly successfully argued that its slogan did not run afoul of the regulation because it was both not suggesting that its product was milk and was instead describing the consumers of Oatly’s product, or the generation that was moving beyond milk. In other words, there was no association being made with milk here; in fact, the opposite was the messaging.

That should have been the end of this nonsense. Instead, Dairy UK appealed that decision and the London Court of Appeal reversed the lower court’s decision. Suddenly, Oatly could not trademark the slogan, nor use it on its products, ostensibly.

Oatly stated that the reversing of the decision was absurd and clearly a ploy by Dairy UK to limit competition with its members. The company appealed up to the UK Supreme Court which, amazingly, affirmed that Oatly cannot have its slogan trademarked.

The UK Supreme Court has unanimously ruled that Oatly cannot use its “Post Milk Generation” trademark on oat-based food and drink, handing a landmark victory to the dairy industry, as it contends with record-low farm numbers, falling retail volumes, and collapsing wholesale prices.

The judgment arrives at a precarious moment for British dairy. The number of British dairy farms has fallen to a record low of 7,010 — an 85% decline from an estimated 46,000 in 1980, according to industry estimates and the Agriculture and Horticulture Development Board (AHDB). 

It’s hard to see this as anything other than a national-level court falling all over itself to protect a domestic industry from foreign competition. The explanation the court offered for its decision is equally confusing. For one, while Oatly pointed out again that its use of the word “milk” in the slogan is not describing the product, but the consumer, the court said that doesn’t matter at all. The word instead simply suffers from a blanket ban on any marketing or trade dress if it doesn’t come from a nipple.

Then, when Oatly also points out that its use obliquely informs the public that the product does not contain milk — hence the “post milk generation” language –, the court points out that because Oatly has stated that the slogan doesn’t describe the product, any insinuation about the product itself doesn’t count as it’s not direct and clear enough.

The second: even if the word “milk” is caught, is Oatly saved by an exception that allows protected terms when they “clearly” describe a quality of the product, such as being milk-free? Again, the court said no. Lords Hamblen and Burrows, writing for the unanimous panel of five justices, held that the slogan describes a type of consumer — younger people turning away from dairy — rather than anything about the product itself.

Even if it could be read as referencing a milk-free quality, it does so in an “oblique and obscure way” that fails to clarify whether the product is entirely milk-free or merely low in dairy content.

This is the court acknowledging explicitly that Oatly’s slogan is not describing the product, but the consumer. It also claims that a slogan that describes a consumer that has moved beyond milk isn’t clear enough as to whether the product is sufficiently non-milk. What?

All the court has demonstrated is that Oatly is definitely not trying to call its product milk and is not trying to confuse anyone with its slogan. For that, Oatly doesn’t get its trademark.

Again, the lobbying efforts here are quite clear. And they appear to have influenced the court’s decision. In fact, what Dairy UK is trying to restrict goes well beyond the word “milk” to the point of absurdity.

The Supreme Court has emerged from years of lobbying action. An investigation by Greenpeace’s Unearthed, based on documents obtained through disclosure, revealed that Dairy UK had been lobbying for tighter enforcement of dairy term protections since at least 2017. 

Committee meeting notes showed the association presented “the issue of misuse of protected dairy terms” to a Business Experts Group panel and was subsequently tasked by Defra with developing a briefing paper for the Food Standards Information Focus Group (FSIG).

Dairy UK submitted a position paper to Defra in November 2022, backing FSIG draft proposals that would have gone significantly further — banning descriptors such as “yoghurt-style,” homophones like “mylk,” and even phrases like “not milk.” Forty-four plant-based companies and NGOs, including Alpro, Oatly, Quorn, and the Good Food Institute, co-signed an open letter opposing the restrictions.

If we’ve reached the point in which someone who doesn’t produce milk can’t point out on its trade dress that their product is “not milk”, then we’ve crossed the Rubicon into a land of dumb.

Was the court solely looking to protect suffering UK dairy farmers in its decision? I can’t say so for sure. But what is very clear is that nothing in its decision has anything to do with protecting the public from deception, which is the entire point of trademark law to begin with.

Filed Under: oat milk, post milk generation, trademark, uk

Companies: dairy uk, oatly