The Supreme Court upheld the earlier decisions of the IPO and Court of Appeal in Dairy UK v Oatly, bringing the lengthy dispute to a close. The Supreme Court ruled that the trade mark POST MILK GENERATION is invalid under section 3 of the Trade Mark Act 1994 (the Act). The judgment now sets a clear expectation for businesses in the alternative foods sector to consider Regulation (EU) No. 1308/2013 of the 17 December 2013 widely when shaping their marketing strategies. In this article we’ll be looking at:

• The case’s key facts
• The judgment by the Supreme Court
• What this judgment means for the future of the food and drink industry

The case’s key facts

Oatly applied to register its trade mark POST MILK GENERATION (classes 29, 30 and 32 for oat-based products and class 25 for T-shirts) in April 2021, which was met by an application in November 2021 by Dairy UK for a declaration that the registration was invalid.

Dairy UK’s application was successful in relation to the trade marks use for oat-based foods when heard by Judi Pike in the Intellectual Property Office (IPO). Dairy UK argued that Oatly’s trade mark was invalid under section 3(4) of the Act, which prohibits the registration of trade marks where doing so is prohibited by law. Dairy UK asserted that the use of Oatly’s mark on their food products was prohibited under the Regulation, which sets out the rules for marketing certain agricultural products.

This Regulation strictly reserves designations such as “milk” and “milk products” for products derived from animal milk. However, the Regulation contains an exemption where use of designations is permitted if used to describe a characteristic quality of the product.

The IPO held that, as Oatly manufactured oat-based products, they cannot use the designation “milk” as it is reserved for specific agricultural products, nor does the characteristic exemption apply to the mark. However, the trade mark was permitted for use on T-shirts as non-agricultural products are outside the scope of the Regulations.

This decision was overturned by Richard Smith J in the High Court, which was then overturned by the Court of Appeal. Oatly then appealed to the Supreme Court who handed down their judgment on Wednesday 11 February 2026.

Summary of the judgment

Oatly’s appeal was dismissed, with the Supreme Court unanimously upholding the decision of the IPO and Court of Appeal.

The appeal was brought on two grounds. The first concerned the meaning of designation within the Regulation. Oatly argued that “designation” refers narrowly to the name of the product. As POST MILK GENERATION is not the product’s name, it does not fall within the Regulation and therefore the use of the word “milk” in the trade mark is not prohibited.

Conversely, Dairy UK submitted that “designation” catches any use of a protected term when referring to the relevant product. Under this interpretation, it is irrelevant that POST MILK GENERATION is not the name of the product as “designation” has a wider meaning. The Supreme Court’s adopted Dairy UK’s interpretation, confirming that the prohibition applies where the designation has been used for a relevant product, but not just in the name of that product.

The Court was also asked to consider a second ground. This being whether the trade mark is saved by the characteristic quality exemption contained in the Regulation. Oatly asserted that, should their arguments under ground one fail, it is saved by this exemption as POST MILK GENERATION is used to describe a characteristic quality of Oatly’s product. However, the Court described POST MILK GENERATION as an “oblique and obscure way” to describe the characteristics of the product, therefore also dismissing Oatly’s appeal on this ground.

What will this judgment mean moving forward?

This decision will inevitably raise concerns for plant-based manufacturers who rely on references to agricultural products when marketing their alternatives. However, the Supreme Court did offer some reassurance in its obiter comments on a hypothetical scenario raised by the parties as to whether a trade mark such as MILK FREE used for a milk alternative would be permitted.

The Court agreed that such a word mark would fall within the characteristic exemption of the Regulation, as the mark is clearly used to describe a characteristic quality of the product; that being that it doesn’t contain milk. Therefore, such words would not be treated as prohibited by the “milk” designation of the Regulation.

This decision should provide some clarity for the UK food and drink sector by confirming that the Courts will take a wide approach to the use of protected agricultural products. The Court’s approach should allow brands operating in the plant-based sector to now reassess their marketing strategies accordingly. However, with the ever-increasing popularity of alternative foods, there is a likelihood of also seeing an increase in the number of invalidation claims bought against manufacturers.

Trade marks and invalidation: How we can support you

Our dedicated intellectual property team is on hand to guide you through the implications of this judgment or to support you with any broader IP challenges your business may be facing. Please contact Alan Harper, Partner and Head of Intellectual Property at Walker Morris LLP.