Post Milk Generation – plant beats cow, for now at least?

Posted on January 31, 2024

As “Veganuary” draws to a close for another year, it is interesting to reflect on the growing “plant milk” industry, and the ongoing battle to establish how such non-dairy products can be labelled.

Plant-based products are already banned from describing themselves as “milk”, and there is draft legislation being considered that could potentially extend such restrictions to the words “cheese” and “yoghurt”, making it difficult for “alternative” products to describe themselves as such.

In that context, the UK court ruling in December affirming Swedish alternative dairy company Oatly’s right to use the mark POST MILK GENERATION for their oat drink products is highly significant.

In 2019, Oatly obtained a UK Trade Mark Registration of the mark POST MILK GENERATION for a range of items including T-shirts and food and drink products.

Dairy UK Ltd, the trade association representing the British dairy industry, subsequently applied to have the Registration revoked on the grounds that:

  • the mark is deceptive because it contains the word “milk” in respect of goods which do not comprise or contain milk or milk products.
  • use of the term ‘milk’ for products not made exclusively of milk is contrary to the provisions an EU Regulation (1308/2013) which imposes restrictions on employing the term ‘milk’ in the marketing and packaging of food and drink, and which continues to have effect in the UK post-Brexit.

Oatly’s legal team argued that the slogan was not a description of the product but rather a characterisation of the likely consumer, so the restrictions outlined in the EU Regulation did not apply.

The UK Intellectual Property Office (UKIPO) initially allowed the Registration to remain in force for T-shirts, but declared it invalid for food and drink, arguing that the mark used the term "milk" in relation to products that were not "normal mammary secretions" and was therefore prohibited by the relevant EU Regulation . It reached that conclusion despite finding that the use of the mark would not mislead consumers into believing that the products to which it applied were dairy products, and despite finding that the average consumer would view the mark POST MILK GENERATION as an ironic way of saying that those products were for consumers who no longer drank dairy milk.

Oatly are no stranger to the court room, and their high-profile attempt to sue UK firm Glebe Farm Foods, alleging that the mark PUREOATY infringed their OATLY mark, ended in failure after the High Court (IPEC) found that the marks were not confusingly similar. This time, their appeal to the High Court was more successful.

High Court Judge Mr. Justice Richard Smith considered whether the prohibition in the EU Regulation applied to the mark POST MILK GENERATION. He indicated that marketing and selling an oat-based drink in the UK as "oat milk" is prohibited by the Regulation, whereas the term “oat drink” is acceptable. The use of the mark POST MILK GENERATION for a product marketed as an oat drink would be permissible because Oatly’s trade mark did not claim, imply, or suggest that its products were dairy based. Rather than being descriptive, the mark indicated a product aimed at those who no longer consumed dairy milk. Therefore, the UKIPO had construed the prohibition in the Regulation too widely.

That conclusion was reinforced by the fact that what was being complained of was a trade mark. By their nature, trade marks indicate a unique trade source for goods and are not descriptive of them.

So what does this decision mean? As well as securing Oatly’s right to use the ‘Post Milk Generation’ slogan, Oatly’s legal triumph sets a precedent for plant-based brands navigating challenges related to food labelling. It is now clear that there is no absolute prohibition on using the word “milk” on packaging for plant-based drinks. However, other plant-based brands should still take great care that the word “milk” is not used on their packaging to describe the product itself.

According to Greenpeace’s journalism project Unearthed, “the UK is one of the leading consumers of plant-based products in the world, with plant-based drinks seeing sales increase by 24% between 2020 and 2022 to £276 million. It now has a market share of 7%. Nearly half (48%) of UK consumers drink at least one plant-based milk alternative.” There is clearly a great deal to play for in the industry, and it is not surprising that Dairy UK, whose members include Arla Foods and Müller, has been advocating for stricter guidelines for plant-based products since at least 2017. Nevertheless, as the plant-based food industry continues to grow, this legal precedent could help to influence future discussions, and may encourage a more nuanced understanding of food labelling practices.

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