Supreme Court voids "POST MILK GENERATION" for oat drinks, and the workaround with it
Oatly's mark is invalid on oat-based food and drink because "milk" counted as a designation. Negation, asterisks and droplet symbols do not create a safe harbour.
The Product Desk
What happened
- The Supreme Court unanimously dismissed Oatly's appeal, holding that "POST MILK GENERATION" uses the term "milk" as a "designation" within the meaning of Point 5 of the 2013 Regulation, and is not clearly being used to describe a characteristic quality of the contested products, so the trade mark is invalid in relation to oat-based food and drink.
- Judgment date 11 February 2026; neutral citation [2026] UKSC 4; on appeal from [2024] EWCA Civ 1453; case ID UKSC/2025/0004. Judgment given by Lord Hamblen and Lord Burrows, with Lord Hodge (Deputy President), Lord Briggs and Lord Stephens agreeing.
- Oatly AB is a Swedish company whose business involves the manufacture and sale of oat-based food and drink products as alternatives to dairy products; Dairy UK Ltd is the trade association for the UK dairy industry.
- In April 2021 Oatly registered the trade mark "POST MILK GENERATION"; in November 2021 Dairy UK applied for a declaration that the registration was invalid under section 3(4) of the Trade Marks Act 1994, which prevents registration of any trade mark where its use is prohibited in the United Kingdom by any enactment or rule of law other than law relating to trade marks.
- Dairy UK relied on Parliament and Council Regulation (EU) No.1308/2013 of 17 December 2013 establishing a common organisation of the markets in agricultural products; following Brexit the 2013 Regulation became assimilated law and, with minor subsequent amendments, continues to have effect in domestic law.
Why it matters
The UK Supreme Court unanimously dismissed Oatly's appeal on 11 February 2026, holding that its registered trade mark "POST MILK GENERATION" is invalid in relation to oat-based food and drink [1] [10]. The constraint on alternative-protein branding has therefore moved out of trade mark law and into agricultural labelling law, where a brand asset can fail because of the words in it rather than because someone else got there first [12] [14].
The mechanics matter for anyone drafting packaging copy. Oatly, a Swedish maker of oat-based alternatives to dairy, registered the mark in April 2021 [11] [12]. In November 2021 Dairy UK, the trade association for the UK dairy industry, applied to invalidate it under section 3(4) of the Trade Marks Act 1994, which bars registration where use of a mark is prohibited by an enactment or rule of law other than trade mark law [11] [12]. The prohibition relied on sits in Point 5 of Part III of Annex VII to EU Regulation 1308/2013, which survived Brexit as assimilated law and says the designations "milk" and "milk products" cannot be used for other products, unless the designation is clearly used to describe a characteristic quality of the product [13] [14]. The Court read "designation" broadly, found that "POST MILK GENERATION" uses "milk" as one, and found the proviso did not save it [1] [17].
The route there was not smooth. An IPO hearing officer held the mark invalid for oat-based food and drink but valid for non-agricultural goods such as T-shirts, which fall outside the Regulation [15]. The High Court overturned the food and drink finding; the Court of Appeal restored it; the Supreme Court agreed with the Court of Appeal [15] [16]. From registration to final judgment took roughly four years and ten months [24].
Switzerland reached the same place by a different door. Danone's Alpro carton read "SHHH.... THIS IS NOT MILK", with a white drop replacing the "i", while the back said "oat drink" [2] [3]. The Zurich cantonal laboratory banned the product in March 2022 [4]; the cantonal court upheld that, and in 2024 rejected Danone's appeal [5]; the Swiss Federal Court then rejected the appeal by four votes to one [6]. Swiss law defines milk as the product of mammary secretion of a mammal and protects the name, and labelling must not mislead as to composition or nature [18] [7]. One judge put it as: "If you have to call a spade a spade, you have to call milk milk" [19]. FoodNavigator reads the ruling as ending attempts to bypass dairy naming bans with design tricks [8]. Danone Switzerland says it accepts the ruling and that "Various options are currently being evaluated" [20].
Three things to watch. First, category spread: the EU has banned specific denominations for meat-free products including chicken, beef, steak and pork, which suggests "not steak" copy carries the same risk as "not milk" [21]. Second, jurisdictional divergence: the FDA's position is that clearly labelled nut milks can still use the term, so a single global pack design is now harder to justify [22]. Third, commercial context: Circana reports retail volumes of dairy-free milks have fallen more than 5% for three consecutive years, implying a cumulative drop of about 14% [23] [25]. Oatly has responded to losing the slogan by handing out "contraband" merchandise carrying it, which the T-shirt carve-out permits [15] [9].
Clarity's read
What the record supports and how the coverage leans. The claims behind it follow.
Reality
- Evidence88
- Adoption70
- Hype gap+12
- Incentives74
- Confidence82
Perspective Coverage
4 publishers- Builder
- Builder 35%
- Operator
- Operator 40%
- Investor
- Investor 25%
Claim ledger
Ranked by verification strength, evidence, and original report placement.
- [1]
The Supreme Court unanimously dismissed Oatly's appeal, holding that "POST MILK GENERATION" uses the term "milk" as a "designation" within the meaning of Point 5 of the 2013 Regulation, and is not clearly being used to describe a characteristic quality of the contested products, so the trade mark is invalid in relation to oat-based food and drink.
- [2]
The packaging marketed by Danone Suisse bore the words "SHHH.... THIS IS NOT MILK", with a white drop replacing the "i" in "MILK".
- [3]
Danone's Alpro oat drink does not call itself "oat milk" on pack, opting for "oat drink" on the back of the carton, while the front-of-pack slogan in bold lettering reads "SHHH...THIS IS NOT M*LK" with the "i" replaced by a droplet symbol.
- [4]
In March 2022 the Zurich cantonal laboratory banned the oat-based beverage from the market, claiming it violated the provisions of the law on foodstuffs.
- [5]
Regulators in Zurich ruled the Alpro labelling unlawful in 2022; Danone challenged the decision and the Zurich court rejected its appeal in 2024.
- [6]
Danone Switzerland appealed to the Swiss Federal Court, which at a public hearing on Friday rejected the appeal by four votes to one.
- [7]
Under the Swiss law on foodstuffs, the presentation and labelling of foodstuffs must not mislead the consumer, particularly as regards the manufacture, composition and nature of the product.
- [8]
FoodNavigator's summary states that the decision ends attempts to bypass dairy naming bans with design tricks, and that Swiss court rulings confirm vegan drinks cannot reference milk creatively.
- [9]
Having been forced to retire the slogan, Oatly responded by giving out "contraband" merchandise bearing its "Post Milk Generation" banner, a tongue-in-cheek response to the Supreme Court ruling.
- [10]
Judgment date 11 February 2026; neutral citation [2026] UKSC 4; on appeal from [2024] EWCA Civ 1453; case ID UKSC/2025/0004. Judgment given by Lord Hamblen and Lord Burrows, with Lord Hodge (Deputy President), Lord Briggs and Lord Stephens agreeing.
- [11]
Oatly AB is a Swedish company whose business involves the manufacture and sale of oat-based food and drink products as alternatives to dairy products; Dairy UK Ltd is the trade association for the UK dairy industry.
- [12]
In April 2021 Oatly registered the trade mark "POST MILK GENERATION"; in November 2021 Dairy UK applied for a declaration that the registration was invalid under section 3(4) of the Trade Marks Act 1994, which prevents registration of any trade mark where its use is prohibited in the United Kingdom by any enactment or rule of law other than law relating to trade marks.
- [13]
Dairy UK relied on Parliament and Council Regulation (EU) No.1308/2013 of 17 December 2013 establishing a common organisation of the markets in agricultural products; following Brexit the 2013 Regulation became assimilated law and, with minor subsequent amendments, continues to have effect in domestic law.
- [14]
Point 5 in Part III of Annex VII referred to in Article 78 of the 2013 Regulation provides that the designations of "milk" and "milk products" cannot be used for any product other than those set out, with a proviso that the provision shall not apply to the designation of products when the designations are clearly used to describe a characteristic quality of the product.
- [15]
The hearing officer in the Intellectual Property Office held the trade mark invalid in respect of oat-based food and drink, but held the prohibition did not apply to non-agricultural products such as T-shirts, as those manifestly fell outside the scope of the 2013 Regulation.
- [16]
The hearing officer's decision on oat-based food and drink was appealed by Oatly and overturned by the High Court; the Court of Appeal disagreed with the High Court and held the registration invalid.
- [17]
The Supreme Court holds that the term "designation" in the 2013 Regulation has a broad meaning.
- [18]
Under Swiss law, milk is defined as "the product of the mammary secretion of an animal classified as a mammal"; this name is protected and cannot be used to describe an alternative to milk.
- [19]
One judge said: "If you have to call a spade a spade, you have to call milk milk".
- [20]
Danone Switzerland says it acknowledges the ruling and will implement the required changes: "Various options are currently being evaluated."
- [21]
The European Union recently banned specific denominations for meat-free products, including chicken, beef, steak and pork, and "This is not chicken" or "Not steak" marketing workarounds are unlikely to be tolerated.
- [22]
In the US, the FDA says consumers understand that nut milks are not actually milk, and that as long as they are clearly labeled they can still be sold as milk.
- [23]
Retail sales by volume of dairy-free milks have dropped more than 5% three years in a row, according to research firm Circana.
- [24]
The period from the April 2021 registration of the mark to the Supreme Court judgment on 11 February 2026 is roughly four years and ten months.
- [25]
Three consecutive annual declines of more than 5% imply a cumulative volume decline of at least about 14%.
Sources
4 independent publishers whose own reporting we read for this story.
- Danone’s Alpro blocked by dairy label ruling
foodnavigator.com
1 article · August 17, 2026
- morningbrew.comArguing about ‘milk’ until the cows come home
1 article · August 17, 2026
- Dairy UK Ltd (Respondent) v Oatly AB (Appellant) - UK Supreme Court
supremecourt.uk
1 article · August 17, 2026
- Oat milk can’t mention milk on package, rules Swiss court - SWI swissinfo.ch
swissinfo.ch
1 article · August 17, 2026
Topics and entities
Topics
- Trade Mark Validity and Statutory Prohibitions
- Plant-Based Food Labelling Rules
- Alt-Dairy Market Demand
- Assimilated EU Law in the UK
- Brand Marketing Compliance
- Dairy Designation Protection
Entities
- Swiss Federal Court
- Zurich Cantonal Laboratory
- UK Supreme Court
- UK Intellectual Property Office
- Regulation (EU) No.1308/2013
- Circana
- Trade Marks Act 1994
- US Food and Drug Administration
- European Union