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Oatly wins four-year High Court battle against UK dairy industry association to keep the word 'milk' on its packaging

December 18, 2023

The plant-based milk pioneer, Oatly, has won a massive court battle against the UK dairy industry over the right to use the word 'milk' on the packaging of its products.

The Swedish food giant beat Dairy UK Ltd, the trade association of the UK dairy industry, after a four-year battle over the use of the slogan 'Post Milk Generation' on its food and drink.

Dairy UK argued that it was unlawful to use the term 'milk' in a trademark 'in relation to products that are not mammary secretions'.

The trade organization relied on pre-Brexit European Court regulations from 2013, which restricted the use of the word 'milk' on packaging and in the marketing of food and drink.

However, High Court judge, Mr Justice Richard Smith, ruled that the trademark is valid for use on Oatly products, rejecting that the word 'milk' should be banned in any circumstances on non-milk food packaging. He said the "average customers" would view products bearing Oatly's slogan as "for consumers who no longer consume dairy milk', and that it cannot be said that it 'claims, suggests or implies that (Oatly's) products marketed in conjunction with it are dairy products".

Oatly was initially allowed to register the slogan as a trademark in 2019 for use on its food and drink products. However, this was later rescinded after objections from Dairy UK. Since the ruling against Oatly four years ago, it has been fighting Dairy UK's claim, which is based on European regulations which granted protected status to certain agricultural products in terms of marketing.

Lawyers for Oatly argued that the 'Post Milk Generation' slogan, while containing the protected word 'milk' sidestepped the regulations, as it was not a description of the product it was selling, but of the likely consumer.

In January 2023, Oatly was awarded a trademark by the UK Intellectual Property Office (IPO) to use the slogan on T-shirts only, the court heard.

An IPO officer made a finding that consumers were unlikely to be confused into thinking that food products bearing the slogan contained milk, but nevertheless refused to grand the trademark for food and drink. The officer found that the word 'milk' cannot be used for products which are not dairy milk, even in the context of a trademark that does not describe the product itself.

However, this was overturned by Judge Smith in the High Court.

Granting Oatly victory in its appeal against the officer's decision, the judge said that, having found that the public were unlikely to be 'deceived' by the trademark, they should have allowed it to be used on food and drink.

The judge said that the vital point was that the trademark does not purport to describe the product and is unlikely to lead to consumer confusion.

"Oatly's position is that... a trademark which includes 'milk' for goods which are not milk... might still be acceptable if the mark doesn't claim, imply or suggest that it is a dairy product.

"Terms such as definition, designation, name and sales description in the EU legislation... are all directed to such generic descriptions such that the nature of the relevant food, foodstuff or food product can be discerned.

"However, that is far removed from the situation in this case, in which the mark does not describe any product.

"The mark was not being used to define, designate, describe or name any food, foodstuff or food product, as opposed to describing its source.

"Dairy takes a binary view of the matter: 'milk' appears in the mark and 'milk' may only be used for goods... which are: milk from animals, products derived from animal milk and composite products in which milk is an essential part. If they are not milk, the word 'milk' cannot be used in the trade mark.

"Were the appellant to market and sell in the UK an oat-based drink as 'oat milk', that designation would fall foul of the regulation.

"However, it would be open to the appellant to name one of its products as 'oat drink' since that name would not implicate the protected designations for dairy products.

"The use of the mark in conjunction with that 'oat drink' product would also be permissible since, although the former contains the word 'milk', the mark would not be used to market and sell the latter as 'milk', not being descriptive of a particular product rather than, as the hearing officer found, indicative of the appellant's products more generally as being for those who no longer consume dairy milk.

"In this case, the mark was registered for a variety of goods in different classes and, although it may well have been used in their marketing, it does not purport to market them as any particular product, let alone as milk.

"For the above reasons, I would allow the appeal."

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