Soured (oat)milk: Supreme Court finds Oatly’s POST-MILK GENERATION mark invalid

Dairy UK Ltd (Respondent) v Oatly AB (Appellant) [2026] UKSC 4  

Background

The UK Supreme Court has upheld the decisions of the UK IPO and Court of Appeal in holding that Oatly’s UK trade mark POST-MILK GENERATION is invalid under section 3(4) of the Trade Marks Act 1994, which prohibits the registration of marks where their use is otherwise prohibited under UK law.

The law in question is EU Regulation No.1308/2013, which concerns agricultural products and remained on the UK’s statute book as “assimilated EU law” after Brexit. The Regulation places restrictions on the use of the designations “milk” and “milk products”, limiting their use to only the products set out in the Regulation but subject to an exception for designations which are “clearly used to describe a characteristic quality of the product”.  

Procedural history: how did we get here?

Oatly is a well-known producer of oat-based food and drink products as alternatives to dairy products, especially oat milk. Dairy UK Ltd is a UK dairy trade association.

In 2021, Oatly registered the UK trade mark POST MILK GENERATION for various products, including oat‑based food and drink products. The appeal only concerned the food and drink products, with the non-agricultural products (e.g. t-shirts) falling outside the scope of the Regulation. Dairy UK challenged the registration by applying for a declaration of invalidity under section 3(4) of the Trade Marks Act 1994, arguing that use of Oatly’s mark for the products in question (namely food and drink) was prohibited under the Regulation.  

In January 2023, a UK IPO Hearing Officer granted Dairy’s application and held that Oatly’s mark was invalid. Oatly appealed to the High Court, which overturned the Hearing Officer’s decision. Dairy UK appealed to the Court of Appeal, which disagreed with the High Court and overturned its decision, agreeing with the IPO Hearing Officer.

Oatly appealed to the UK Supreme Court. The two issues before the Court were:

1. Does “POST MILK GENERATION” use the term “milk” as a “designation” within the meaning of Point 5 of the 2013 Regulations?

2. If so, is “POST MILK GENERATION” nevertheless valid when used as a trade mark in relation to the products in question because it clearly describes a characteristic quality of those products such that it is saved by the proviso to Point 5 of the 2013 Regulations?

The Supreme Court’s judgment

The Supreme Court dismissed Oatly’s appeal, holding that Oatly’s POST MILK GENERATION trade mark does use the term “milk” as a “designation” for the purpose of the Regulation and is not clearly used to describe a characteristic quality of the products in question. In other words, it is caught by the Regulation and the caveat for clear descriptive use does not apply. Oatly’s mark is therefore invalid when used for oat-based food and drink products.

On Issue 1, the Court held that under the Regulation “designation” has a broad meaning: it covers any use of a term in relation to a food or drink product, not just the product’s name. Oatly had argued otherwise. This broad interpretation was found to fit the natural wording and purpose of the Regulation, which – in the case of milk – is to govern fair competition in the dairy sector.

The sign POST MILK GENERATION was therefore caught by the Regulation and would only be both permissible generally and valid as a trade mark if clearly used to describe a characteristic quality of the product (Issue 2). The Court held that it did not do so: the mark was focused on describing Oatly’s target consumers (especially younger consumers who could be said to form part of a younger generation particularly concerned about the impact of dairy milk), not a characteristic of the products in question (e.g. oat milk). Even if the mark could be read as a reference refer to the characteristics of Oatly’s products, it did not do so in a “clear” way so could not fall within the caveat to the Regulation.  

Analysis

Oatly’s case is somewhat unusual in that it involves a marketing slogan rather than a brand or product name. This creates a tension in the outcome of its appeal, which in turn highlights the breadth of the restriction in the Regulation: despite the Court finding that POST MILK GENERATION was a reference to a generation of people rather than a characteristic of a particular product (meaning that it did not fall within the exemption to the Regulation), the mark was still found to be a product “designation” for the purpose of the Regulation. 

What this means in practice

Oatly’s unsuccessful attempt to trade-mark POST MILK GENERATION may have wider ramifications on the terms that it and other producers of dairy alternatives can use for their products, regardless of whether they try to register them as trade marks. The Supreme Court’s judgment has already attracted significant media attention in this regard, with news outlets questioning its application to wider use of terms such as “milk” and “cheese” for dairy-free products such as oat milk.

Although the judgment concerns a marketing slogan which, by its nature, had a lower chance of qualifying for the Regulation’s exemption for clear descriptive use in relation to a characteristic of a product, it increases the legal risk for producers of dairy alternatives in the UK and (to a lesser extent) the EU and is likely to result in producers taking an increasingly cautious approach to the terminology they use. Expect to see more ‘oat drink’ on supermarket shelves and less ‘oat milk’.

More generally, the saga underlines the importance of brands factoring potential wider commercial and legal implications into their analysis when deciding whether to seek registered trade mark protection for a particular sign.

This article was written by Harry Jewson and Jacob Berger. If you would like to discuss any of the issues raised in this case, please contact Harry Jewson, Chloe Perea Poole or another member of our Intellectual Property and Food & Drink teams.

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