Oatly Post Milk Generation Trademark Refused
Britain's highest court has refused Oatly's attempt to register the phrase "Post Milk Generation" as a trade mark, confirming that the term "milk" cannot be used in branding for non-diary products under retained EU law.
The UK Supreme Court held that diary designation protections, originally introduced under EU Regulation 1308/2013 and now embedded in UK law, reserve the word "milk" exclusively for animal-derived products. The decision reinforces strict legal limits on plant-based branding in the UK.
For food and beverage businesses, the ruling is a significant reminder that trade mark law and food labelling regulations operate together, and regulatory compliance can override branding strategy.
Why was Oatly's "Post Milk Generation" trademark refused?
The UK Supreme Court refused Oatly's trade mark because UK law legally defines "milk" as the normal mammary secretion obtained from animals and that using "milk" in branding for plant-based goods breaches statutory dairy designation regulations.
The court rejected Oatly's argument that the phrase clearly described milk-free characteristics, finding it instead “oblique and obscure” in describing product qualities. Although Oatly did not market its oat drink simply as "milk", the court found that including the word "milk" within the broader phrase "Post Milk Generation" conflicted with statutory dairy term protections derived from EU Regulation 1308/2023, which also protects other dairy terms such as "butter", "cheese", "yoghurt" and "cream". These terms may only be used for animal-derived products, subject to limited traditional exceptions such as "coconut milk" and "peanut butter."
The judges adopted a purposive interpretation of the legislation, concluding that allowing registration would risk undermining the clarity the regulatory regime is designed to protect.
Does Brexit change the rules on using "milk" in the UK?
In short, the answer is no. Although the UK has left the European Union, EU Regulation 1308/2013 was retained in domestic law. The legal definition of "milk" and related dairy designations continues to apply.
The Supreme Court's decision confirms that Brexit has not relaxed restrictions on plant-based branding involving protected dairy terminology.
What this means for plant-based food and drink brands
The Oatly trademark refusal has wider implications for the rapidly expanding plant-based food and drink sector.
1. Regulatory compliance overrides brand creativity
Even distinctive, innovative or slogan-based branding can be refused if it conflicts with sector-specific legislation. A trade mark may satisfy traditional criteria such as distinctiveness and lack of consumer confusion, yet still fail if it breaches food and drink restrictions.
2. Dairy terminology is strictly protected
The court's approach suggests that context does not neutralise statutory restrictions and the use of "milk" within broader phrases may still breach protections. It also indicates that marketing creativity cannot circumvent regulatory definitions.
Brands must carefully assess whether incorporating protected food and drink terms creates legal risk.
3. IP strategy impacts investment and exit
Trade mark protection is central to brand valuation and a refusal can affect fundraising, investor confidence, M&A transactions and international expansion.
For high-growth consumer brands, regulatory compliance should be considered at the earliest brand development stage.
Is it illegal to use the word "milk" on non-dairy products?
Under retained EU law, "milk" is defined exclusively as mammary secretion from animals. Unless a recognised exception applies, the term cannot be used in a way that conflicts with this statutory definition. This applies not only to product labelling but also to certain forms of branding and trade mark registration.
However, each case depends on a number of factors. For example, the precise wording used, the product category, regulatory context and whether the use undermines the protected designation regime.
Legal advice should be sought before adopting branding that references protected food and drink terms.
Tidman Comment
This decision signals heightened legal risk for terms like 'oat milk' and 'plant-based cheese' in the UK market, and brands should stick with clearly descriptive alternatives like 'oat drink' to avoid straying into protected territory. The UK Supreme Court's refusal of Oatly's "Post Milk Generation" trademark confirms the term "milk" remains legally protected for animal-derived products and that Brexit has not weakened dairy terminology restrictions. It also demonstrates that trade mark registration can be refused on regulatory grounds so food and drink law compliance must be integrated into IP strategy.
The ruling also reflects an ongoing tension between consumer understanding of plant-based alternatives and protection of agricultural product designations. Supporters of legislative change argue that modern consumers are not confused by terms like "oat milk." Conversely, proponents of the regulatory regime maintain that protected designations preserve clarity, prevent dilution of standards, and ensure consistent market definitions.
For plant-based brands, early legal review of naming, packaging and marketing materials is essential to avoid costly rebranding or registration refusals.
If your business operates in the foods and beverage sector, particularly plant-based or alternative products, regulatory compliance must form part of your IP strategy.
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Please note the contents of this blog is given for information only and must not be relied upon. Legal advice should always be sought in relation to your specific circumstances.
