Dairy UK v Oatly

The Supreme Court have upheld the decision the Court of Appeal made in the case of Dairy UK v Oatly. They found that Oatly’s slogan ‘POST MILK GENERATION’ was invalid for oat-based food and drinks, as the trademark cannot be registered if its use is prohibited by another law.

Here Oatly had registered their trademark in relation to categories of oat-based food and drink and t-shirts. This caused Dairy UK to apply for a declaration under Section 3 of the TradeMarks Act 1994, stating the registration is invalid.

The Court of Appeal, and subsequently the Supreme Court, agreed with Dairy UK, and explained that this trademark was a ‘designation’ of milk, which would be prohibited. They went on to explain that the words ‘milk’ or ‘milk product’ cannot be used for products other than those that come from the actual animal. They acknowledged that there is an exception to this, where the company are using the trademark to describe a characteristic quality of the product. However, they too shutdown this argument by Oatly, and said it is being used in respect of a food product, as it did not clearly describe the characteristic of being milk-free. They said it is not clear enough as to whether the drink is completely milk-free or has very low quantities of milk.