Dairy UK Ltd v Oatly AB UKSC 4
The Supreme Court has just come up with a ruling in an attempt to end a dispute over non-cow based milk products. In April 2021, plant-based company Oatly registered the trade mark “POST MILK GENERATION” for use in relation to certain categories of products. The issue on this appeal was the validity of that trade mark in relation to their popular oat-based food and drink products.
Lactose intolerant and vegetarian/vegan consumers, as well as those with an eye on the environment, have flocked to buy their cartons of “milk” in preference to the products of animal dairy farming. The photo accompanying this post is the one we are most familiar with, along with the “Wow no cow” slogan. Their “POST MILK GENERATION” mark, which was accompanied by an image of a stylised milk wave, was opposed by Dairy UK Ltd before the UK Intellectual Property Office (IPO).
Background law and facts
Oatly is a Swedish company whose business involves the manufacture of oat based food and drink products as alternatives to dairy products. The respondent, Dairy UK Ltd, is the trade association for the UK dairy industry.
In November 2021, Dairy applied for a declaration that the registration of Oatly’s trade mark was invalid under the Trade Marks Act 1994. Under s.3(1)(c) of this Act, marks contrary to law or morality cannot be registered. Dairy also argued that Regulation (EU) No.1308/2013 (part of post-Brexit retained EU law) contained such a prohibition.
Oatly appealed successfully to the High Court, which found “POST MILK GENERATION” not a “designation of milk” due to its metaphorical nature. The Court of Appeal reversed this ruling, deeming it a prohibited “designation.” Oatly then appealed to the Supreme Court.
Issues before the Supreme Court
The Court considered two key questions:
- Whether “POST MILK GENERATION” constituted a “designation” of milk under Article 78(1), prohibiting trade mark registration for imitation dairy products.
- If it did so, did it qualify for exemption under Article 78(2)(b) as a term “used to clearly… describe… a characteristic quality of the product,” like composition or production method.
Article 78 states: “Member States… shall ensure that… no designations of milk… are used… in respect of… products not obtained by the milking of animals… [except] where those products are used to clearly… describe… a characteristic quality of the product.” The Court interpreted “designation” broadly and exemptions narrowly.
Decision of the Court
The Supreme Court unanimously dismissed Oatly’s appeal on 11 February 2026, upholding the prohibition. Lords Hamblen and Burrows delivered the judgment, with Lords Hodge, Briggs and Stephens concurring.
On issue one, “POST MILK GENERATION” was held a “designation” because it evokes “milk” imagery via “milk” and the milky wave device, positioning oat drinks as a successor generation to dairy milk. The Court rejected Oatly’s “metaphorical” argument, noting that trade mark law targets consumer perception, not literal meaning.
On issue two, no exemption applied. The slogan did not, in the Court’s view “clearly describe a characteristic quality” like oat composition or plant-based production. Instead, it aimed to market superiority over milk without factual clarity.
Reasoning behind the Court’s decision
Article 78(1) prohibits “designations of milk” (e.g., cream, butter) on non-animal products to protect the dairy sector. There is also a notion about protecting the consumer here, although arguably the consumer is all too aware that this “milk” does not come from a cow, which is why the product is popular in the first place.
The regulation’s use of the word “designation” is important. It encompasses evocative phrases, not just exact terms, per ordinary meaning and purpose. In the Court’s view, the “milky device” of Oatly’s TM functioned as an imitation evoking dairy fluidity.
According to the Court, even though this trade mark could be regarded as referring to a characteristic quality of the products (namely, the characteristic of being milk-free), it was doing so in an oblique and obscure way and was certainly not doing so “clearly” see para [40]. In particular, it did not make clear whether the product is entirely free of milk, or only that the milk content is low [41].
There are exemptions under Article 78(2), but only for terms which “clearly describe” inherent qualities of a product (e.g., “soya-based”) excluding vague or comparative claims. The Supreme Court found that Oatly’s slogan failed as promotional rhetoric, not descriptive elucidation.
Comment
This is the start of a very long battle of trade marks, food descriptions and labelling requirements. “Meat” and “dairy” products that are not derived from livestock are here to stay. Whilst plant-based claims are easy to dismiss on the basis of their origin, what about “beef”products grown from stem cells in a laboratory, fed by animal serum (so-called “clean meat” because of their drastically reduced carbon footprint?)
Plant based products fall within the Novel Foods Regulation, part of our EU retained law (Regulation (EU) 2015/2283). Because of its proximity to real livestock, cultivated meat is outside the NFR and comes within Regulation (EC) 853/2004 (the legislation that provides specific hygiene rules for food of animal origin). This is because these cell-cultivated products originate from a cell, or cells, taken from animals.
So whilst this decision lies in the way of claims to dairy and meat equivalence for plant-based products, industry lobbying is bound to ratchet up as alternatives to livestock farming gain traction.
Does this judgment stifle innovation? For the moment, perhaps. Oatly will have to rebrand their UK marketing (although for the author of this post, their slogan “Wow no cow” has always been reason to buy the product in full knowledge of its origin). Incidentally, the slogan “Wow No Cow” apparently evaded direct prohibition by avoiding exact dairy terms but fuelled Dairy UK’s opposition to Oatly’s trade marks. “It exemplified Oatly’s irreverent style, turning lawsuits into PR wins”.
Comment from one vegan barrister:
“It really is baffling, this run of appeals was about the phrase “POST MILK GENERATION” being used on oat milk cartons. At least by the time of the SC appeal hearing, both parties agreed that it was NOT the name of the product and that it was not confusing consumers, so the dairy lobby has really spent all this money just to stop Oatly using that phrase on their cartons.”
And another:
“In case anyone was misled into thinking that oats, unlike coconuts, had breasts”
