No use crying over spilt milk: Supreme Court draws the line on plant-based branding

Yesterday’s decision in Dairy UK Ltd v Oatly AB [2026] UKSC 4 has clarified the scope of statutory restrictions on the use of dairy terminology in trade marks, reaffirming a strict regulatory approach.

The appeal concerned Oatly’s trade mark for POST MILK GENERATION, registered for use in relation to oat-based food and drink products. Dairy UK, the trade association for the UK dairy industry, challenged the registration under section 3(4) of the Trade Marks Act 1994. The challenge was brought on the basis that use of the mark was prohibited by assimilated EU law, specifically Regulation (EU) No 1308/2013. The Regulation prohibits the use of the designation “milk” (and other dairy terms) in respect of products that do not meet the Regulation’s definition of milk or milk products, unless the term falls within the proviso in Point 5 of Annex VII, which allows use which clearly describes a characteristic quality of the product.

Dairy UK’s challenge was first considered by the UKIPO, which found the trade mark invalid for oat-based food and drink, despite acknowledging that it was not misleading to consumers. The High Court overturned the decision, concluding that the mark did not “designate” the products as milk and therefore fell outside of the prohibition. The Court of Appeal, in turn, reversed the High Court’s decision and held that the mark was invalid. Oatly appealed to the Supreme Court. 

The Supreme Court considered (1) the proper interpretation of “designation” in Point 5 of Annex VII to the Regulation and whether POST MILK GENERATION fell within its scope; and (2) the proper interpretation of the proviso to Point 5 and whether it applied to POST MILK GENERATION. 

The Supreme Court unanimously dismissed Oatly’s appeal. 

In relation to the first issue, the court held that the word “designation” in Point 5 of Annex VII to the Regulation is not limited to the name of a product. Instead, it extends more broadly to any use  “in respect of” a food or drink. On that basis, POST MILK GENERATION impermissibly used the term “milk” as a designation for oat-based goods.

The Court then considered whether POST MILK GENERATION was saved by the proviso, i.e. on the basis that the Regulation permits designations that “clearly describe a characteristic quality of the product”. Oatly argued that the phrase conveyed the milk-free nature of its products. The Court rejected this argument, on the basis that the message it conveys is ambiguous and primarily focussed on describing the targeted consumers, rather than a characteristic of the product. The requirement of clarity was therefore not met.  

POST MILK GENERATION was therefore invalidly registered in respect of oat-based food and drink products.

For brand owners in the plant-based sector, the ruling underscores the narrow scope for using dairy terminology. Creative or ironic branding that references “milk” may still be caught by the Regulation unless it unmistakably and directly describes a permitted product characteristic. The Supreme Court did accept that “milk-free” terminology could be used in respect of dairy free products, as such wording would be caught by the proviso.