M&C in the news: Kirsten Gilbert provides expert insight on Oatly's Supreme Court setback

Last week, the Supreme Court's significant ruling that Oatly cannot use the term “milk” within its trade mark “POST MILK GENERATION” was in the spotlight. 

Partner and Head of Brand Exploitation, Protection and TM Litigation UK, Kirsten Gilbert provided expert insight across leading agricultural and legal publications, including Farmers Weekly, Farmers Guardian, World Trademark Review and LexisNexis, helping to unpack a decision that reinforces a strict regulatory line around dairy terminology.

The Supreme court upheld the invalidation of Oatly's trade mark under section 3(4) of the Trade Marks Act 1994, confirming that the use of ‘milk’ is legally restricted to animal-derived products. As Kirsten explained, the Court endorsed a broad interpretation of the word ‘designation’, meaning that even indirect or referential use of ‘milk’ in connection with non-dairy drinks is prohibited. 

“The question in the appeal was what was meant by ‘designation’. Oatly argued that it should be given a narrow meaning of the name of a food or drink rather than a broader meaning of a term used in respect of a food or drink. The Supreme Court agreed with the broader meaning, which meant that the use of the work ‘milk’ within the term ‘POST MILK GENERATION’ when used in relation to non-dairy drinks was prohibited.”

“Oatly had a fallback position that if the use of term was prohibited, then the use in the term ‘POST MILK GENERATION’ fell within one of the exceptions, because it was clearly being used to describe a characteristic quality of the oat drink product. This argument was also unsuccessful, as the Court did not accept that the use was ‘clear’.”

Media coverage highlighted the implications for both traditional dairy producers and the rapidly-expanding dairy-alternative market. As Kirsten highlights in Farmers Weekly, the decision strengthens the position of dairy organisations challenging plant-based brands.

“If your products are not dairy products, you will not be able to use the term milk in relation to your products. If you are in the dairy sector, this is another tool that can be used against the non-dairy alternative sector when opposing trade mark applications and the use of trade marks that contain the word ‘milk’.”

Kirsten also drew attention to the wider policy considerations underpinning the decision in Farmers Guardian:

“The Supreme Court decision was not based on consumer protection principles which are the foundation of trade mark law, but instead on the basis of policy to ‘set our fair conditions of competition’ by setting out a strict prohibition in protecting the use of the term ‘milk’.” 

Kirsten's commentary reflects a growing debate about whether the decision prioritises competition policy over consumer clarity — effectively reserving “milk” for the dairy sector at a time when plant-based alternatives have become mainstream. 

If you would like tailored advice on how the Supreme Court's ruling might affect your brand strategy or trade mark protection, please contact Kirsten, or your usual Marks & Clerk advisor.