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UK High Court allows Oatly to use 'milk' on packaging

Oatly has scored a landmark victory in the use of the word milk after the UK High Court ruled against the country’s dairy industry and permitted the term to be used on packaging.

The ruling was the culmination of a four-year battle, in which judges ruled in favour of the vegan food specialists and its intention to use the word as part of the slogan 'Post Milk Generation' to sell its milk alternative.

Published court documents reveal the arguments the trade association, Dairy UK, put forward in the case, stating that milk meant exclusively the normal mammary secretion obtained from one or more milkings.

The trade association went on to reference pre-Brexit European Court regulations dating from 2013 that restricted the use of the word milk on packaging and the marketing of food and drink.

Oatly’s 'Post Milk Generation' slogan does not suggest products are dairy-based

In his ruling, Justice Richard Smith said that there was an unlikely risk of consumer deception, pointing out that Oatly’s slogan does not suggest its products are dairy-based.

Smith added: “The mark was not being used to define, designate, describe or name any food, foodstuff or food product, as opposed to describing its source.”

Oatly was initially permitted to register the slogan as a trademark for use on the firm’s food and drink products. These included its oat‐based drinks as milk substitutes; natural energy drinks; breakfast drinks; fruit drink beverages; and smoothie beverages.

The firm ran into opposition later, when Dairy UK, which count representatives from Arla and Lakeland Foods among its board members, objected to the slogan’s registration.

Significance of EU regulations

Key to Dairy UK’s arguments since then has been European regulations which detail marketing practices permitted for specific dairy-based products.

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Those rulings outlined in Article 78(2) of Regulation (EU) No 1308/2013 of the European Parliament specify how the word milk can be used on food packaging.

Oatly’s legal team put a case forward for the 'Post Milk Generation' slogan to be exempt from the regulations, stating that it was not a description of the product it was offering, but of the consumer.

In Smith’s explanatory remarks, the judge said the trademark did not claim to describe the product and was unlikely to lead to consumer misunderstanding.

“Terms such as definition, designation, name and sales description in the EU legislation summarised above are all directed to such generic descriptions such that the nature of the relevant food, foodstuff or food product can be discerned. However, that is far removed from the situation in this case in which the mark does not describe any product,” he said.

“In this case, the mark was registered for a variety of goods in different classes and, although it may well have been used in their marketing, it does not purport to market them as any particular product, let alone as milk. For the above reasons, I would allow the appeal.”

Plant-based sector faces challenges as to how its products can be described

The ruling in favour of Oatly places the spotlight on similar cases worldwide in which the plant-based sector faces an assortment of regulatory issues.

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Chilean food-tech company NotCo recently launched an appeal against a ruling that did not permit the firm to use its ‘NotMilk’ trademark in Chile on the grounds that consumers would be able to distinguish the product as a plant-based beverage despite packaging featuring the word milk.

Likewise, the Spanish seafood sector has combined its resources to push for a ban on 'fraudulent' plant-based products, which "attempt to assimilate to fish products to encourage their consumption, when they are neither fish nor do they provide the nutrients, minerals and benefits of fishery products".

Meanwhile, France and Australia have revealed they are to explore the introduction of stricter labelling regulation, which would limit the use of meat-related terms for plant-based products.