There’s no use crying over spilled (oat) milk

Emma Emerson, insurance director at Scrutton Bland

Emma Emerson, insurance director at Scrutton Bland, looks at whether Intellectual Property insurance cover should be a consideration for businesses - Credit: Scrutton Bland

Recent years have seen an increase in the popularity of alternative dairy drinks. However, the Swedish company Oatly, which specialises in oat-based dairy substitutes, may be feeling a little sour at the moment having recently lost a trademark infringement court case against a family farm in Cambridgeshire.  

Oatly is best known for its oat milk drink and has factories all over the world and was valued at $2 billion in 2020. Family-owned Glebe Farm Foods, which is based near Huntingdon, has been in cereal production for 30 years, and in 2019 developed an oat milk called Oat Drink, which was renamed in 2020 as PureOaty. 

Oatly then brought legal action against Glebe Farm Foods, claiming that they had taken “unfair advantage” and infringed five of Oatly’s trademarks with the PureOaty name, the packaging of the product and Oatly’s trademarks by “passing off” their product as Oatly’s.

In what was widely seen as a David versus Goliath court battle, the judge found against Oatly’s claims. Ruling in favour of the Cambridgeshire farm business, the judge said that while there were similarities between the initial PureOaty and Oatly packaging, these were “at a very general level”. 

He remarked: “It is hard to see how any relevant confusion would arise from the defendant’s use of the sign ‘PureOaty’.” And in conclusion: “I do not see that there is any risk of injury to the distinctive character of Oatly’s marks.” 

Legal battles to protect food product trademarks are nothing new. In 2019, Cadbury lost an appeal to trademark the use of the shade of purple it uses for packaging its milk chocolate bars. 

In 2018, Nestle lost its EU-wide protected status for the shape of their KitKat four-fingered wafers, and earlier this year Marks & Spencer took legal action to protect its trademark chocolate cake, Colin the Caterpillar, against copycat products which looked and sounded very similar.  

Oat milk. Healthy vegan non-dairy organic drink with flakes

Legal battles to protect food product trademarks are nothing new - Credit: Getty Images/iStockphoto

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Why protect your trademark? 

A trademark, whether that is a name, design, colour, logo, wordmark or strapline is an important element of a business, and it is increasingly important for businesses to protect that part of their Intellectual Property (IP). 

The power of a logo or trademark in defining your business can be taken for granted – until another business imitates that logo or uses words in their advertising that are similar to yours. 

Will your insurance cover you?  

Whilst Intellectual Property (IP) cover is often incorporated into broader business policies such as Professional Indemnity, this may not provide the level of specialist cover you need, particularly for businesses working in media or design. 

In cases where it could be likely that you might infringe someone else’s copyright, or they infringe on yours, it is recommended that you speak to your broker about a standalone IP insurance policy which could give you greater coverage.   

Our insurance team works with businesses of all sizes to ensure they have the correct insurance protection in place, whether that is broad business policies or specialist covers. 

To find out more about protecting your business please email or call 0330 058 6559.

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