Spilt milk: court sides with vegan Oatly in trademark dispute
Oatly has won its appeal against Dairy UK for the right to use the word “milk” in its marketing for vegan versions of dairy products.
The Swedish alternative dairy company used the phrase as part of its slogan “Post Milk Generation,” which was granted a trademark in 2019.
Responding to the claim, Dairy UK argued that it was unlawful to use the “milk” on packaging to describe goods that were not “not mammary secretions”.
A trade association for the UK dairy industry, Dairy UK board includes bosses from milk and cheese giants Arla and Lakeland Foods.
It first objected to the trademark when it was accepted, although the letter was mislaid until October 2020, when the trademark acceptance was subsequently rescinded.
The battle between Oatly and Dairy UK followed, with the trademark being re-registered in April 2021 and declared invalid in November that year. This appeal is a response to the November 2021 judgment.
This appeal cited the Trade Marks Act 1994, which states that trademarks should not be “of such a nature as to deceive the public” and pre-Brexit European Court regulations from 2013, which restrict the use of the word “milk” on packaging.
TofuTown, a plant-based food manufacturer, was banned under EU law from using dairy descriptions on its food packaging for vegan and vegetarian products in 2017.
Mr Justice Richard Smith, however, upheld Oatly’s appeal of the grounds that the slogan “is distinctive of” and “not descriptive of” the company’s goods.
The decision is the latest twist in a four-year-long case, which began when Dairy UK contested the Intellectual Property Office’s decision to allow Oatly’s trademark application for the slogan in 2019.
The judge decided that it was “important not to lose sight of the purpose and effect of the regulation” and that “the average consumer” will see the slogan as for “consumers who no longer consume dairy milk”.
Bryan Carroll, general manager Oatly UK and Ireland: said: “We’re pleased the appeal to the Intellectual Property Office was approved, and that the Post Milk Generation is alive and well. Our mission is to make it easier for people to live healthier lives without recklessly taxing the planet’s resources and we will continue to challenge rulings and legislation such as this to seek a more level playing field for plant-based products.”
Dairy UK was contacted for comment.
This story was updated to include Oatly’s comment.