Non-dairy Giant vs UK Family Farm ' Oat Milk Brand Battle

Published date05 August 2021
Subject MatterIntellectual Property, Trademark
Law FirmHGF Ltd
AuthorClaire Jones

Earlier this year we looked at M&S v Aldi in the Caterpillar wars, and the case at the moment is Oatly v Glebe Farms.

In an [Oat]shell:

Swedish drinks firm Oatly produce a range of oat milk-alternative products, a net worth of $15 billion and sell products in over 20 countries.

Glebe Farm is a family-run farming company based in Cambridgeshire that grows and processes gluten free oats. They launched a range of oat milk-alternative drinks under the name "PureOaty" in 2020.

Oatly filed proceedings at the Intellectual Property Enterprise Court ("IPEC"), a specialist division of the High Court claiming trade mark infringement and passing-off of both its "OATLY" trade mark and its product packaging.

As with the Caterpillar wars earlier this year, the case has caught the attention of the media and has been widely reported, with many reports accusing Oatly of bullying a smaller company, and the court of public opinion may not follow the legal decision.

The case was heard at the IPEC in June, and a decision is expected in the next few days.

OATLY vs PUREOATY

Both names have a hint of descriptiveness - they both refer to oat based milk drinks. Oatly is the 'original' brand in the sector, and many other brands in the sector refer to 'oat' in a descriptive way, but using an unrelated brand name (such as ALPRO, INNOCENT, PROVAMEL and RUDE HEALTH).

This is probably the strongest part of Oatly's claim and again brings up a timely reminder that filing and registering your brand as a trade mark is only part of the battle. Especially with such a reputation and market position, Oatly should, and are entitled, to defend their brand's position in respect of infringements and similar marks. The size of the entity involved is, in legal terms, quite irrelevant.

In a comparison of the word marks, there is a degree of similarity - they share the letters O-A-T-Y and taking account of the 'imperfect recall' of consumers, it is likely that O-A-T-L-Y and O-A-T-Y would be seen as the same. Glebe Farm's mark incorporates the additional element "PURE", which again can refer to the 'pure' nature of the oats used in the products.

If Oatly have relied on their reputation and use to date, they may well be able to claim a higher level of distinctiveness of their earlier OATLY mark, irrespective of the inclusion of the descriptive element "OAT".

Packaging

Initially, in 2019, Glebe Farm launched their milk-alternative under the name 'Oat Drink', before testing in the market and rebranding as...

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