Limits on using “milk” in product names, brand names and slogans: Supreme Court rules Oatly’s trade mark invalid
In short, the use of dairy terms such as “milk” is prohibited within trade marks for plant-based food and drink goods unless the term is clearly used to describe a “characteristic quality” of the goods, such as “milk free”. The UK courts have considered whether this restriction, resulting from an EU Regulation, applies only to product names and descriptions, or whether it extends to any use of such terms. The Supreme Court has now confirmed that the prohibition applies whenever a protected dairy designation is used in relation to a relevant product, and that it is not necessary for the term to be used as a product name.
Background
In April 2021, the trade mark “POST MILK GENERATION” was registered by Oatly AB (Oatly) in relation to oat-based food and drinks.
In November 2021, Dairy UK Ltd (Dairy) applied to invalidate the mark, inter alia, on the ground that a trade mark shall not be registered if or to the extent that its use is prohibited in the UK by an enactment or rule of law other than law relating to trade marks (Section 3(4) of the Trade Marks Act 1994).
The relevant enactment in question was an EU Regulation (assimilated law) that established a common organisation of the markets in agricultural products ((EU) No.1308/2013 of 17 December 2013 (the 2013 Regulation)). The 2013 Regulation sets out certain requirements regarding the use of the term “milk”, as well as milk products such as “cheese” and “yoghurt”. In essence, there are “designations” reserved for dairy products, including the term “milk”, with the exception that the designations can be used for any product when “clearly used to describe a characteristic quality of the product”. For instance, “this oat-drink is milk-free”.
At first instance, the United Kingdom Intellectual Property Office (UKIPO) declared the trade mark POST MILK GENERATION invalid on the basis that the 2013 Regulation prohibited the use of the term “milk” for non-milk products.
The High Court overturned this decision, finding that the 2013 Regulation did not prohibit use of the term “milk” in the general marketing of products. Since the trade mark POST MILK GENERATION did not purport to market the relevant goods as a milk product, it did not constitute a designation.
This in turn was overturned by the Court of Appeal and Oatly subsequently appealed to the Supreme Court.
Supreme Court decision
At the Supreme Court, Oatly argued that the 2013 Regulation prohibition only kicked in when “milk” was used as a name of a non-dairy food or drink, for example, “oat-based milk”. As POST MILK GENERATION did not name or describe an oat-based food or drink, the prohibition did not apply: no one would say the product they were drinking was POST MILK GENERATION.
However, the Supreme Court noted that the 2013 Regulation did not utilise the term “name” but the broader term “designation”. It was held that the term “designation” referred to “use in respect of food or drink rather than the naming of it”. On this basis, it found that designations, including the term “milk”, may not be used for any product other than the milk products referred to within the 2013 Regulation. It concluded that “the prohibition bites where the designation has been used for a relevant product, and it is not necessary that it has been used as the name of the product.”
As an alternative, Oatly argued that even if the trade mark POST MILK GENERATION did constitute a prohibited designation, use was nevertheless permitted on the basis of the 2013 Regulation’s proviso, as the trade mark clearly described a characteristic quality of the oat-based food and drink goods; namely that the products were milk-free. However, the Supreme Court rejected this argument, finding that the meaning of POST MILK GENERATION was far from clear. It was considered that the mark did not seek to clearly refer to milk-free characteristics, but rather described the target consumers and in particular, younger consumers who have concerns about the consumption of milk. It was held that “in so far as it is describing a characteristic quality of the product, it is doing so in an oblique and obscure way and is certainly not doing so ‘clearly.’”
For these reasons, the Supreme Court unanimously dismissed Oatly’s appeal.
In short
Brand owners need to remain alert to the fact that certain rules and regulations may prohibit the use of specific words in connection with particular goods and services. Checks should be carried out to ensure that trade marks do not contain any prohibited terms, reducing the risk of making redundant investments. This decision may also prompt increased scrutiny in the UK marketplace regarding the use of regulated terms.
Case details at a glance
Jurisdiction: UK
Decision level: Supreme Court
Parties: Oatly AB (appellant) and Dairy UK Ltd (respondent)
Date: 11 February 2026
Citation: [2026] UKSC 4
Decision (PDF): dycip.com/2026-uksc-4
