London Court Of Appeal Reverses Decision To Grant Oatly Its ‘Post Milk Generation’ Trademark

It was almost exactly a year ago that we discussed a trademark dispute in the UK between Oatly, the sometimes IP bully and maker of oat-based milk products, and Dairy UK, a British trade association for dairy farmers. At issue was the trademark application of Oatly’s for its “Post Milk Generation” slogan. In its opposition of the mark, Dairy UK invoked a 2013 law that prevented companies that make non-dairy milk from calling their products “milk” in advertising and trade dress. That is fairly silly in and of itself, given the long history of plant-based “milks,” but is made all the more so by the simple fact that Oatly’s slogan isn’t calling the product milk. Instead, it’s literally referring to its customers moving beyond milk.

That’s the exact argument Oatly made in court in defense of its application in 2023, where it won and was told it could proceed with getting the trademark. Dairy UK appealed, however, and the London Court of Appeal has reversed the previous court’s decision, denying Oatly its trademark.

Dairy UK CEO Judith Bryans said: “This unanimous decision reinstates the Intellectual Property Office’s original decision, which declared the trade mark invalid for oat-based products.”

General manager for Oatly’s UK and Ireland branch Bryan Carroll noted the decision makes it “harder to label and find dairy alternatives,” benefiting “the interests of Big Dairy and Big Dairy alone.”

Carroll said the case was an attempt to reduce “competition through legal action” and “creates an uneven playing field for plant-based products”.

It’s hard not to see this in any way other than Carroll’s. The point of both trademark law and the EU regulation law from 2013, it seems, is to prevent confusion in the public as to what they are buying. In other words, plant-based milk-makers can’t pass their goods off in a way that fools people into thinking that it’s actually dairy-based milk. If that isn’t the point of the regulation, I can’t imagine what it would be.

So who is going to the store in the UK, buying a product like Oatly where the packaging says “Post Milk Generation,” and somehow thinking they bought cow milk? I would argue both that this sort of thing just isn’t going to happen and that the EU regulation is protectionist drivel almost certainly written by the same industry organizations now wielding it to stop their competition.

And whatever else we might want to say about Oatly as a company, that simply isn’t the purpose of trademark law.