The UK Court of Appeal has ruled that Oatly is not allowed to use the marketing slogan ‘Post Milk Generation’ on the labelling of its food and beverage products, overturning a decision made by the High Court last year permitting the brand to continue using the phrase.
The five-year legal case has been ongoing since 2019, when the Swedish oat milk giant registered the ‘Post Milk Generation’ slogan to be used across its food and beverage products, including its oat beverages, as well as on T-shirts.
Dairy trade association Dairy UK contested the trademark, arguing that the use of the word ‘milk’ violated 2013 European Court regulations that prohibit the use of dairy-related terms in the marketing of non-dairy products.
The International Property Office (IPO) granted the trademark for use only on T-shirts, and not food and drink products, but Oatly successfully appealed this decision last year. The British High Court of Justice ruled in December 2023 that the trademark could be restored across all Oatly’s products, on the basis that the word ‘milk’ was not being used to describe the product itself and therefore would not be likely to confuse consumers.
However, in a U-turn development almost a year later, the Court of Appeal has ruled in favour of Dairy UK and the wider dairy industry, deciding that the trademark violates EU and UK regulations.
Bryan Carroll, general manager for Oatly UK & Ireland, commented: “Disappointingly, this ruling overturns the common sense we saw from the High Court earlier this year when they ruled in our favour. Be under no illusion that making it harder to label and find dairy alternatives benefits the interests of Big Dairy and Big Dairy alone.”
He explained that Oatly is now “considering its options,” one of which could be appealing the decision to the Supreme Court, though whether the company will take this action is so far unconfirmed.
Carroll added: “[Big dairy’s] cynical attempts to stifle competition through legal action contradicts the interests of the British consumer, creates an uneven playing field for plant-based products and worst of all, it delays progress in shifting the public towards more sustainable diets”.
In a statement, Dairy UK’s chief executive, Judith Bryans, welcomed the decision made by the Court of Appeal, which reinforces that all dairy-free brands are prohibited from using such dairy-related terms on their products.
“This unanimous decision reinstates the Intellectual Property Office’s original decision, which declared the trademark invalid for oat-based products,” Bryans continued.
“This ruling clarifies the legal protection of dairy terms, according to which the term ‘milk’ is reserved for dairy milk, except in defined circumstances. At the heart of the legal matter was whether these rules extend to trademarks, and the Court of Appeal has now confirmed this to be the case.”
Commenting on the news, Jasmijn de Boo, global CEO at industry associaton ProVeg International, said: "This verdict is based on the retained and very stringent EU Regulation 1308/2013, which prohibits the use of the word 'milk' other than for ‘mammary secretions’. After Brexit, the UK could have chosen to revise or withdraw many outdated EU regulations, such as this one, because the market for plant-based alternatives to dairy has been well-established."
She emphasised that "several studies show that consumers are not being misled by the use of the term 'milk' for plant-based milks," adding that there are numerous reasons why plant-based milks should be supported and promoted, rather than restricted.
Recently published data from ProVeg found that the nutritional profile of plant-based milk alternatives across 11 countries was similar to that of their dairy-based counterparts, containing less total fat and saturated fat than cow's milk. Additionally, de Boo highlighted that some plant-based milks have a carbon footprint between 63% and 78% smaller than cow's milk.
She concluded: "In terms of the impact on the market from this ruling, plant-based milk has been a real success story and ProVeg believes it will continue to go from strength to strength."
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