There is a comforting little thought that a lot of business owners allow themselves once the certificate finally arrives, and it tends to go something like this: I have got my trademark registered, so that is the job done. I completely understand the appeal of believing it, because registration feels like a finish line and it is genuinely something worth celebrating, but the honest truth is that it sits far closer to the starting line than the finish, and my favourite coffee accompaniment, Oatly, found that out the hard way earlier this year when the UK Supreme Court struck one of its trademarks clean off the register, a full five years after the registration had originally been granted.
Back in 2021, Oatly registered the slogan ‘Post Milk Generation’ as a tagline trademark, and they did so across their oat drink and food ranges, which on the face of it looked like a perfectly sensible piece of brand building from a company that has always been clever, and at times deliberately cheeky, with the way it uses words. The difficulty is that being clever with language and actually owning that language as a registered right are two very different things, and this February the Supreme Court agreed with Dairy UK, the dairy industry trade body that had challenged the mark, that the registration was invalid for the oat products it was supposed to protect.
The short version of the court’s thinking, and I am paraphrasing here rather than quoting it line by line, is that you cannot really lean on the word ‘milk’ for something that quite plainly is not milk, and that the slogan ended up describing the sort of person who might buy the product rather than describing the product itself, which is exactly the kind of distinction that sounds like hair splitting right up until the moment you realise it is the whole basis of whether a trademark stands up or falls over.
This is not the first time milk and trademarks have crossed swords
If you have followed our knowledge hub for any length of time, you will already know that this is far from the first occasion I have written about milk and the curious legal knots it manages to tie brands into. Back in June 2021, when Oatly were very much on the offensive rather than the defensive, they filed a claim against Glebe Farm Foods over their PureOaty brand, and I wrote at the time about whether anyone would genuinely be confused between those two oat milk brands, a dispute that ultimately did not go Oatly’s way. Then in December 2024 I found myself writing about milk all over again, on that occasion about the rather clever use of ‘milk’ within a plant-based certification mark, which struck me as a far smarter way of solving the problem than trying to monopolise a generic word that nobody can sensibly own, and yes, I am perfectly aware that getting this enthusiastic about certification marks marks me out as a particular sort of person.
Registration is not the end of the story
Here is what I would really want you to take away from all of this, and it is not the eye catching headline about a big brand losing a slogan, because that is only ever the hook. The genuine lesson is that registration is not the end of the story, and Oatly’s experience demonstrates that from both directions at once, because over the past few years they have had to enforce their rights against other people and then defend their own rights when other people came after them, which is simply the reality of owning a brand that the public actually notices and cares about.
I should be clear that we cannot represent you in court, because that is a job for the network of attorneys we work alongside, but what I will say, having watched a great many of these disputes play out over the years, is that it is almost always far more cost effective to try and settle matters long before they ever reach a courtroom, and that is especially true if you are a small or medium sized business working to a limited budget rather than a Swedish multinational with deep pockets and a stock market debut already behind you.
Why proactive monitoring matters more than the certificate
This is precisely why proactive monitoring of your trademark, whether it happens to be registered or not, matters so much more than most people tend to assume, because you genuinely need to know, and ideally to know quickly, if somebody else has either maliciously or completely innocently set up a company under your name, registered a domain that trades off the back of your brand, opened a social media account in your name or started selling a product on Amazon that infringes on the thing you have spent years building. Nipping that sort of problem in the bud early, before the other party has poured time and money into it and before they have built up any real traction, is so much easier and so much cheaper than trying to persuade somebody to stop using something they have already invested heavily in, and I really cannot stress that difference strongly enough.
The worst way to find out, and unfortunately it is a story we hear far too often these days, is when a customer leaves a negative review on your website complaining about an experience they never actually had with you, simply because they were dealing with someone else entirely who they believed was you, which is passing off in its most maddening form and a thoroughly unpleasant thing to stumble across after the event.
So by all means celebrate the day your registration finally comes through, because it is a real achievement and it genuinely does matter, but please do not treat it as the moment you are allowed to stop paying attention, because as Oatly have shown at what I imagine was considerable expense, a trademark is something you have to look after, enforce and occasionally defend, and the brands that tend to come out of these situations in one piece are almost always the ones who were already watching closely long before there was anything obvious to worry about. If you would like to talk through how to keep a proper eye on your own brand, we are always happy to have that conversation.
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