Oatly has expressed disappointment as the Supreme Court has dismissed its appeal against Dairy UK over the term ‘Post Milk Generation’.
In the latest update in the long-running legal process, the Supreme Court has unanimously dismissed its appeal, agreeing with the Court of Appeal that Oatly cannot trademark the phrase in relation to oat-based food and drink.
The plant-based company has said the prohibiting of the trademark is a “way to stifle competition and is not in the interests of the British public”.
“This decision creates unnecessary confusion and an uneven playing field for plant-based products that solely benefits Big Dairy,” said a spokesperson for the business.
Oatly had previously attempted to trademark the tagline with the IPO, which led the dairy sector’s main trade association to appeal, arguing it was unlawful to use the term ‘milk’ in a trademark “in relation to products that are not mammary secretions”.
The High Court decision found Oatly could use the phrase, but in December 2024 the Court of Appeal clarified the legal protection of dairy terms, according to which the term ‘milk’ was reserved for dairy milk, except in defined circumstances.
Today, the Supreme Court dismissed Oatly’s appeal and found that Oatly was attempting, with this trademark, to use the term ‘milk’ as a designation which can only be used for dairy products.
It also found that the trademark did not clearly describe a characteristic quality of oat-based food and drink products. Instead it was focused on describing the targeted consumers. it said.
“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,” said CEO of Dairy UK, Dr Judith Bryans.
“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 court found that the slogan could be used on t-shirts as it was descriptive of a consumer who may wear it, “but has nothing to do with the characteristic quality of the t-shirt”.
“Despite today’s ruling, we remain committed to driving positive change and advocating for a food system that helps people eat better without recklessly taxing the planet’s resources,” Oatly said. “And rest assured, we’ll be finding a way to get our ‘Post Milk Generation’ merchandise into the hands of our brilliant community.”
Legal experts said that the judgment brought “important clarity for food and drink based brands operating in the UK” as it showed that if a product was not derived from animal milk it cannot be marketed using reserved dairy designations.
“In practical terms, terminology such as ‘oat milk’ or ‘plant-based cheese’ now carries heightened legal risk in the UK market,” said Richard May, partner at Osborne Clarke. “Marketing teams will need to ensure that product names and campaign messaging do not stray into protected territory.”
He added that businesses should “expect careful scrutiny and plan their brand strategy accordingly”.
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