In a unanimous decision, the Supreme Court dismissed Oatly’s appeal and confirmed that its trade mark “Post Milk Generation” was invalid for use in relation to oat-based food and drink products. The Court held that the use of the term “milk” in the mark was prohibited under assimilated EU law governing the use of protected dairy designations.
The appeal centred on the interpretation of Regulation (EU) No. 1308/2013, which protects the use of dairy terms such as “milk”, “cheese” and "yogurt". Oatly argued that the word “milk” in the mark was not being used as a “designation” under the Regulation and therefore fell outside the scope of the prohibition. It also contended that, even if the term was caught by the legislation, the trade mark was saved by an exception allowing designations that clearly describe a characteristic quality of a product.
Rejecting those arguments, the Supreme Court held that “designation” has a broad meaning and is not limited to the generic name of a product. The Court confirmed that the prohibition applies where protected dairy terms are used in respect of non-dairy products, even where they are not used as the product’s name. The court also found that “Post Milk Generation” did not clearly describe a characteristic quality of oat-based products and therefore does not fall within the statutory exception.
The judgment provides authoritative clarification on the scope of protection afforded to dairy terms in the UK post-Brexit and offers important guidance for brand owners operating in regulated markets, particularly in relation to trade mark registrability, use and enforcement. It confirms that the regulatory regime extends to trade marks and is designed to uphold fair conditions of competition within the agricultural sector.
The DWF team advising Dairy UK was led by Director in the Intellectual Property team, Asima Rana, supported by Associate Jake Slinger and counsel, Tom Moody-Stuart KC of 8 New Square.
Commenting on the judgment, Asima said: "The Supreme Court’s decision brings welcome clarity and confirms how the relevant regulatory framework is to be applied in practice. Importantly, it provides greater certainty for businesses operating in the food and drink sector.”
Judith Bryans, Chief Executive of Dairy UK, added: "This is a significant and welcome judgment for the UK dairy industry. The Supreme Court’s decision reinforces the long-established legal protections for dairy terms and ensures that they cannot be used inappropriately in ways that undermine fair competition. We are grateful to DWF and counsel for their expert guidance and support throughout this litigation."
The appeal centred on the interpretation of Regulation (EU) No. 1308/2013, which protects the use of dairy terms such as “milk”, “cheese” and "yogurt". Oatly argued that the word “milk” in the mark was not being used as a “designation” under the Regulation and therefore fell outside the scope of the prohibition. It also contended that, even if the term was caught by the legislation, the trade mark was saved by an exception allowing designations that clearly describe a characteristic quality of a product.
Rejecting those arguments, the Supreme Court held that “designation” has a broad meaning and is not limited to the generic name of a product. The Court confirmed that the prohibition applies where protected dairy terms are used in respect of non-dairy products, even where they are not used as the product’s name. The court also found that “Post Milk Generation” did not clearly describe a characteristic quality of oat-based products and therefore does not fall within the statutory exception.
The judgment provides authoritative clarification on the scope of protection afforded to dairy terms in the UK post-Brexit and offers important guidance for brand owners operating in regulated markets, particularly in relation to trade mark registrability, use and enforcement. It confirms that the regulatory regime extends to trade marks and is designed to uphold fair conditions of competition within the agricultural sector.
The DWF team advising Dairy UK was led by Director in the Intellectual Property team, Asima Rana, supported by Associate Jake Slinger and counsel, Tom Moody-Stuart KC of 8 New Square.
Commenting on the judgment, Asima said: "The Supreme Court’s decision brings welcome clarity and confirms how the relevant regulatory framework is to be applied in practice. Importantly, it provides greater certainty for businesses operating in the food and drink sector.”
Judith Bryans, Chief Executive of Dairy UK, added: "This is a significant and welcome judgment for the UK dairy industry. The Supreme Court’s decision reinforces the long-established legal protections for dairy terms and ensures that they cannot be used inappropriately in ways that undermine fair competition. We are grateful to DWF and counsel for their expert guidance and support throughout this litigation."
