Jurisdiction(s):
United Kingdom

Chancery overturns invalidation of Oatly’s POST MILK GENERATION: 'milk' not a protected designation under EU 1308/2013; s3(4) TMA not engaged (England and Wales)

Published on: 03 January 2024

Published by a LexisNexis IP expert

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Article summary

Oatly AB v Dairy UK Ltd [2023] EWHC 3204 (Ch) What was the background?

In November 2019, Oatly AB (‘Oatly’) lodged an application for the word trade mark POST MILK GENERATION for goods in classes 29, 30 and 32, namely oat-based products. During examination, the IPO found the mark to be inherently registrable, considering it distinctive rather than descriptive. After registration, Dairy UK filed for a declaration of invalidity, including under TMA 1994, s 3(4). That provision prevents registration where use is prohibited by law, in this instance Article 78(2) and Part III of Annex VII of Regulation (EU) 1308/2013 (the EU Regulation), which provides that the term ‘milk’ cannot be used as ‘definitions, designations or sales descriptions’ for products that are not mammary secretions. The Hearing Officer upheld the objection, taking the view that the EU Regulation is aimed at capturing the marketing of non-dairy products and concluding that, because the trade mark features the word ‘milk’ and is registered for non-dairy goods, it fell foul of the EU Regulation...

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