Branding meets regulation and regulation wins. The Supreme Court has made it clear that even a single “milk” reference can turn a slogan sour.
The UK Supreme Court has handed down a landmark decision in Dairy UK Ltd (Respondent) v Oatly AB (Appellant), unanimously ruling that plant-based brand Oatly’s trade mark “POST MILK GENERATION” is invalid as a trade mark for oat‑based food and drink products. The decision provides important clarification for plant‑based businesses and for any brand owner operating in highly regulated sectors where certain terminology is legally protected.
On 11 February 2026, the Supreme Court dismissed Oatly’s appeal regarding this trade mark, confirming that the slogan’s use of the word “milk” amounts to a prohibited designation under retained EU agricultural marketing law.
Crucially, the Court found that the phrase does not fall within the statutory exception that allows protected terms to be used when they “clearly describe a characteristic quality” of the product.
Dairy UK Ltd v Oatly AB case background
Oatly AB, a plant-based brand widely known for its oat‑based drinks, registered “POST MILK GENERATION” as a trade mark in 2021 for classes covering oat‑based food and drink products.
Dairy UK, the trade association representing the UK dairy sector, challenged this registration shortly after, relying on Regulation (EU) No 1308/2013, which restricts the use of dairy‑related terms such as milk, butter, and cheese to animal‑derived products. Following Brexit, this Regulation continues to apply in the UK as “assimilated law”.
The litigation travelled through:
- The UKIPO – which found the trade mark invalid for oat‑based goods
- High Court – which overturned the UKIPO
- Court of Appeal – which reinstated the finding of invalidity of the trade mark
- UK Supreme Court – which has now affirmed the Court of Appeal’s decision
The Supreme Court’s Reasoning
1. “Milk” in the slogan is a prohibited designation
The Supreme Court held that the use of the word milk within the phrase “POST MILK GENERATION” constitutes a designation under the 2013 Regulation, even though it is part of a wider slogan rather than a literal product name.
The Court made clear that the regulatory restrictions apply not only to product names but also to marketing communications, including trade marks.
2. The statutory exception did not apply
Oatly argued that the slogan did not describe a dairy product but rather signalled a cultural shift away from milk. The Court rejected this, finding the phrase lacked the required “clear” descriptive connection and was too indirect to fall under the exemption for describing a characteristic quality (such as “milk‑free”).
3. The trade mark remains valid only for non‑food items
Because the regulatory prohibition applies only to food‑related use, the mark remains valid for T‑shirts and merchandise, which were included in the original filing.
Key Takeaways for Brand Owners and Marketing Teams
1. Marketing slogans are not exempt from regulatory terminology rules
Even indirect references (e.g., “Post Milk Generation”) may breach sector‑specific wording restrictions. Brand owners must therefore check sector‑specific restrictions (e.g., dairy, wine, olive oil, medical devices) before adopting marketing terms.
2. Conduct regulatory checks alongside trade mark clearance
The Supreme Court confirmed that wording prohibited by law cannot be registered as a trade mark under Section 3(4) of the Trade Marks Act 1994, which bars marks whose use is prohibited by another enactment.
3. The ruling may embolden industry‑specific challenges
Trade associations or incumbents in regulated sectors may increasingly rely on statutory terminology restrictions to challenge emerging competitors.
4. Trade mark registrability ≠ freedom to use
Even if a mark passes trade mark examination, it may still be vulnerable to invalidity if its use contravenes sector‑specific legislation.
5. Validity may differ across goods and services
Oatly’s mark was invalid only for food and drink classes but remained valid for non‑food items, such as T‑shirts. This illustrates that brand owners may still be able to salvage protection for some categories even if the mark is prohibited for others.
Conclusion: What this decision means for plant-based brands
The Oatly trade mark decision provides valuable clarity at the intersection of trade mark law and regulated terminology. For brand owners (particularly in the fast‑growing plant‑based sector), the message is clear: regulatory compliance is now a critical component of branding strategy.
On a broader note, the case illustrates that section 3(4) of the Trade Marks Act 1994 can prevent the registration of a trade mark on the basis of legal restrictions that fall outside traditional IP considerations. Brand owners should therefore be alert to regulatory regimes that may create unforeseen risks of refusal or invalidity.
How can we help
If your business is developing a new product name or marketing campaign, please contact us, our IP team can assist with both trade mark clearance and regulatory compliance assessments. Feel free to contact Estelle Dekker and Cesare McArdle for more tailored legal advice.
