Supreme Court dismisses Oatly appeal
In February 2026 the Supreme Court handed down their decision in Dairy UK Ltd v Oatly AB [2026] UKSC 4, in which it was asked to rule on two issues in relation to the trade mark “POST MILK GENERATION”. Lord Hamblen and Lord Burrows gave the leading judgment (with Lord Hodge, Lord Briggs and Lord Stephens agreeing).
Oatly AB had registered the term “POST MILK GENERATION” in relation to oat-based food and drink products. Dairy UK Ltd, the respondent, and trade association for the UK dairy industry, objected to this use. The court was therefore asked to consider whether this term was “a “designation” for the purposes of Article 78 of Parliament and Council Regulation (EU) No. 1308/2013 (as amended) (the “2013 Regulation”) such that Oatly AB could not register it as a trade mark?”
The two issues were: one, does “POST MILK GENERATION” use the term “milk” as a “designation” within the meaning of Point 5 of the 2013 Regulation? (Issue 1). Secondly, if so, is “POST MILK GENERATION” nevertheless valid when used as a trade mark in relation to those products because it clearly describes a characteristic quality of the contested products such that it is saved by the proviso to Point 5 of the 2013 Regulation? (Issue 2). The challenge to the mark arose because of s.3(4) of the Trade Marks Act 1994, which prevents registration of marks whose use is prohibited by other law.
At first instance, the High Court had upheld Oatly’s appeal after the UK IPO had declared the mark invalid for oat-based products. The Court of Appeal reversed the appeal, so Oatly appealed to the Supreme Court.
The Supreme Court unanimously dismissed Oatly’s appeal. It held that the phrase “POST MILK GENERATION” used the protected dairy designation “milk” within Point 5 of Annex VII to Regulation 1308/2013. The proviso did not apply because the phrase did not clearly describe a characteristic quality of the products, instead referring to a group of consumers. Accordingly, the trade mark was invalid for oat-based food and drink products, although it remained valid for non-agricultural goods such as T-shirts.
Posted on 03/16/2026 by Ortolan
