The Supreme Court has issued the final judgment in respect of the long-standing dispute between Oatly AB and Dairy UK Ltd surrounding Oatly’s registered trade mark for “POST MILK GENERATION”, and found in favour of Dairy UK Ltd.
It was found that any use of the trade mark “POST MILK GENERATION” in relation to any of the goods contained within the registration’s specification would contravene Regulation (EU) No. 1308/2013, an instrument of retained EU law that (amongst many other things) prohibits the use of the term “milk” in relation to any similar product to milk or milk products that aren’t precisely that. The only exception granted to Oatly was its ability to use the mark in relation to t-shirts, since clothing is clearly discernible from milk and milk products and therefore does not contravene the Regulation.
This decision may be controversial to some, being that it relies on the Supreme Court’s statutory interpretation of the Regulation to determine that Oatly’s oat-based milk-alternative drink is not a milk product pursuant to the Regulation and that the mark “POST MILK GENERATION” would not be sufficiently clear in defining whether or not the goods it would be used for are milk or milk products as defined by the Regulation. This ultimately has the effect of Oatly being unable to use the term “milk” when describing its oat-based goods, though it was clarified that the term “MILK-FREE” would be acceptable if used.
There remains a question as to whether or not the Regulation should be modernised to reflect surging demand for milk-alternative products, with stakeholders arguing that using the term “milk” to describe milk-alternative products does not prejudice the dairy industry nor stifle fair market competition. In the meantime, however, Oatly are resigned to consider alternative marketing approaches.
If you have any questions on the above, or if you need any advice or support in respect of your own Intellectual Property, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
