Michael Edenborough KC and Niamh Herrett act for Oatly AB, which has been granted permission to appeal by the Supreme Court. 

The case concerns the validity of the trade mark ‘Post Milk Generation’, the proprietor of which is the well-known oat drink brand Oatly. The mark was challenged by the trade association for the UK dairy industry under sections 3(3)(b) and 3(4) of the Trade Marks Act 1994.

The proceedings have already been ventilated in the UK IPO O/0049/23, the High Court [2023] EWHC 3204 (Ch), and the Court of Appeal [2024] EWCA Civ 1453. The s.3(3)(b) ground (deceptiveness) failed before the registry.

The remaining ground is whether the trade mark is prohibited by Article 78 and Part III of Annex VII of Council Regulation 1308/2013/EU, which regulates (inter alia) the use of terms such as 'milk', 'butter', 'cream' etc. when used in relation to products that do not contain dairy products. This case is of great importance to the general public, retailers and manufacturers in the growing dairy-alternative food and drink market. 

Michael Edenborough KC and Niamh Herrett are instructed by Shakespeare Martineau LLP and Boult Wade Tennant LLP.