Jurisdiction(s):
United Kingdom

UKSC upholds invalidity of Oatly ‘POST MILK GENERATION’ trade mark: ‘milk’ a prohibited designation; characteristic-quality proviso not engaged; TMA 1994 s3(4) and assimilated EU food law applied

Published on: 11 February 2026

Published by a LexisNexis IP expert

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Article summary

Background

Dairy UK Ltd (Respondent) v Oatly AB (Appellant) [2026] UKSC 4. The appellant, Oatly AB (Oatly), a Swedish enterprise, manufactures and markets oat-derived foods and beverages as substitutes for dairy. The respondent, Dairy UK Ltd (Dairy), is the representative trade body for the UK dairy sector. In April 2021, Oatly secured registration of the trade mark ‘POST MILK GENERATION’ for specified classes of goods. The question on appeal concerned whether that mark was valid for oat-based food and drink items. In November 2021, Dairy sought a declaration of invalidity relying on section 3(4) of the Trade Marks Act 1994 (TMA 1994), which bars the registration of any trade mark where its use is prohibited in the UK by any enactment or rule of law other than trade mark law. Dairy contended that the Regulation creating a common organisation of the markets in agricultural products imposed such a prohibition. After Brexit, that Regulation became ‘assimilated law’ and, subject to minor later amendments, continues to operate within UK domestic law. Point 5 in Part III of Annex VII of...

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