From ‘Quad God’ to ‘Milk God’: The 'milk' ban in Dairy UK v Oatly

[Georgia Jenkins]

From ‘Quad God’ to ‘Milk God’: The 'milk' ban in Dairy UK v Oatly

 Georgia Jenkins Wednesday, February 11, 2026 - characteristic quality, consumers, Dairy UK v Oatly, designations, fair competition, Georgia Jenkins, illegal marks, UK trade mark law

Section 3(4) of the TMA 1994 precludes a trade mark from registration ‘if or to the extent that its use is prohibited in the UK by any enactment or rule other than law relating to trade marks'. While protected emblems like those in the Geneva Conventions Act 1957 are classic examples, the Olympic Symbol etc. (Protection) Act 1995 feels more topical following self-described ‘Quad God’ Ilia Malinin’s five quadruple jumps and backflip that secured gold for Team USA at the Winter Olympics Figure Skating Team Event last weekend.

Perhaps less obvious, however, is the prohibition on using the term ‘milk’ within a trade mark for non-dairy products. While Regulation 1308/2013 related to ‘establishing a common organisation of the markets in agricultural products’ may not seem nearly as dramatic as the Quad God, its interpretation in Dairy UK Ltd v Oatly AB by the UK Supreme Court offers comparable excitement for trade mark enthusiasts.

Using the term ‘Milk’ within a trade mark

The case centres upon the registration of the trade mark ‘POST MILK GENERATION’ for use in relation to categories of oat-based food and drink, as well as T-shirts, by Oatly, a Swedish company that manufactures and sells related products. It was challenged by Dairy UK on the basis that the inclusion of ‘milk’ acts as a designation which Part III, Point 5 of Annex VII of Regulation 1308/2013 precludes in relation to dairy products.

Point 5 of Part III outlines that ‘milk’ and ‘milk products’ can only be used in relation to milk or products derived from milk. Further in Point 6, other than those circumstances, no label, commercial document, publicity material or any form of advertising or and form of presentation may be used which claims, implies or suggests that the product is a dairy product. It can only be used to describe the basic raw materials and to list the ingredients. It is only when it the exact nature of the designated product is clear from traditional use, and/or the designation is ‘clearly’ used to describe a characteristic quality of the product, that Point 5 does not apply.

At first instance, the UK IPO Intellectual Property Office (UKIPO) hearing officer agreed with Dairy UK, opting for a broad construction of the term ‘designation’. This meant that as the trade mark included the word ‘milk’ for goods that were not milk, it was invalid. This was regardless of how the mark as a whole may be viewed by consumers. This decision was overturned by the High Court with Smith J holding that the term ‘designation’ is limited to ‘milk’ being used to identify products as milk, not its use in marketing products.

However the Court of Appeal overturned this decision, preferring a wider construction of designation to include the marketing of products. Additionally the Court of Appeal found that the use of the designation did not ‘clearly’ describe a characteristic quality of the goods. On appeal to the Supreme Court, Oatley submitted that designations are limited to the name of the product and, as ‘POST MILK GENERATION’ is not the name of the product, the trade mark is valid. In the event that it does use ‘milk’ as a designation, Oatly submitted that it is clearly describing a characteristic quality of the goods.

An exemplary exercise of statutory interpretation

Perhaps a little anti-climatically, the Supreme Court confirms what we already know, i.e. that this requires an exercise of statutory interpretation. Indeed the judgement is an exemplar for first year law students affirming that the interpretation of ‘designation’ within the Regulation must be construed according the meaning of the words used in light of their context and purpose of the provision. While there is some preface early in the judgment that a ‘modern’ assessment is applicable, the Court affirmed the Court of Appeal.

Focusing on Article 78(2) and Part III of Annex VII of the 2013 Regulation, specifically Point 5, the Court rejected Oatly’s argument that ‘designation’ means the name of a product. When read alongside Point 2(a) and (b) of Part III, the Court noted that the word ‘names’ is used which does not have the same meaning. A reference to ‘sale description’ meaning ‘the name of the good’ further suggests that ‘designation’ does not have the same meaning as ‘the name of a product’. This is also evident from Article 76 and the heading of Annex VII where the terms ‘designations and sales descriptions’ are used and indicate that they have different meanings.

Agreeing with Dairy UK, the Court found that the terms ‘designation’ or designations’ in Point 5 refer to ‘their use in respect of a food or drink rather than the naming of it’. As Oat-based food is not referred to in Points 1-3 of Part III, the use of ‘milk’ to refer to food or drink is prohibited. The Court appeared to acknowledge the harsh outcome as the prohibition applies whenever a designation describes or refers to a good or drink that is not listed in Part III, not simply when it is used as the name of the product. It would seem that the purpose of Point 5, pursuant to recital 76, 'to set out fair conditions of competition’, outweighs concerns that a strict prohibition limits market competition.

How 'clear' must a the use of a designation be for the purpose of describing a characteristic quality of a product?

Oatley argued that, even if the use of ‘milk’ fell foul of the first limb of Point 5, it would be saved by the second limb as ‘milk’ was used to describe a milk-free product. It was submitted that ‘POST MILK GENERATION’ was used not in relation to oat-based milk or food, but to clarify that there was no milk in the contested product.

The Court agreed with both the Court of Appeal and Dairy UK, and found that ‘POST MILK GENERATION’ does not ‘clearly’ describe any characteristic of the contested product. Instead, it found that it targets consumers; in particular:

those younger consumers who may be said to belong to a generation for whom there are, in contrast to past generations, widespread concerns about the consumption of milk.

The Court found that the composition of milk within the contested products remained unclear and asked whether it refers to these products being milk free or simply ‘low milk’, comparable to ‘low alcohol’ products? The fact that ‘POST MILK GENERATION’ for T-shirts is valid was indicative to the Court that this use refers to targeting a consumer, not describing a characteristic quality of the product.

Comment

For this Kat, it is difficult to wrap her head around the fair competition principles that allow a ban on the term ‘milk’ when used for non-mammal goods and drinks. Indeed the very ‘young consumers’ referred to by the Supreme Court represent markets that were more niche ten years ago. Perhaps concerns over the global decline of animal milk consumption has fuelled the decision to ‘future-proof’ the dairy market by challenging trade marks that target non-dairy markets?

Photo by Beatris M. on Unsplash This Kat is taking this latte to the Su-purr-eme Court  for further investigation

Interestingly, the Court does accept in obiter that, if the trade mark was ‘MILK-FREE’, this would constitute a prohibited designation but be saved by the second limb. It would seem that any perceived encroachment on the dairy market hinges on how explicitly you distinguish your non-dairy product regardless of consumer perception. Yet who would be best placed to determine whether the use of the designation describes a specific quality? Is it not precisely those ‘young consumers’ this judgment excludes?

While the Supreme Court performs a masterclass in statutory interpretation (which budding IP enthusiasts should take note of) this Kat ponders whether post-Brexit, this is an area ripe for legislation to modernise dairy term protection to better align with plant-based market realities and consumer savvy.

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