Following our article in June which discussed Oatly’s trade mark infringement action against Cambridgeshire-based Glebe Farm, the final judgement in this no(a)tortious battle was issued by Judge Nicholas Caddick at the end of last week. It was decided that Oatly had failed to persuade the High Court in London that Glebe Farm had infringed the Oatly trade marks with the branding of its PureOaty drink.

Oatly claimed in the two day hearing in June that the PureOaty brand name and packaging was too similar to its own and that Glebe Farm was therefore infringing the registered trade marks owned by Oatly. Oatly owns a host of registered trade marks including the word marks ‘OATLY’ and ‘OAT-LY’ and a number of marks relating to the design of its oat drink cartons. Oatly accused Glebe Farm of also passing off PureOaty as an Oatly beverage. Oatly sought damages and costs from the local business as well as demanding that Glebe Farm stop selling the PureOaty brand and radically change its name and packaging.

In response to Oatly’s claims of trade mark infringement, Judge Caddick found that there were similarities between the PureOaty packaging and the Oatly packaging, namely, the use of the colour blue and the use of an irregular font for the product name. However, the Judge held that the level of similarity between the PUREOATY mark and the OATLY trade mark is “relatively low or, at best, very modest and that similarity is due to the presence in both of the letters “OAT” that are descriptive of the relevant products.”

As mentioned in our previous article, the key question for the Judge would be whether there is a likelihood that the average consumer will be confused between the two brands. Oatly’s counsel argued that customers would be confused and mistake PureOaty for a type of Oatly product. Judge Caddick said: “It is hard to see how any relevant confusion would arise from the defendant’s use of the sign PUREOATY. In particular, the use of ‘Pure’ as a prefix to the word ‘Oaty’ and the appearance of the carton as a whole seem to me to preclude any likelihood of the PureOaty product being seen as some sort of sub-brand of Oatly.”

During the hearing, Oatly’s legal representatives provided an in depth analysis of the company’s dominance in the UK market and outlined that Oatly had sales of over £38m of their “barista edition” oat milk in the UK last year. This demonstrated to the court that Oatly’s products are widely exposed to the UK public. The judge agreed that the Oatly cartons were highly distinctive and would be very recognisable to customers. On the basis of this evidence, it was accepted that the use of the PureOaty sign is likely to bring the Oatly trade marks to the minds of many average consumers but only because the product is an oat drink and an average consumer would be well aware of Oatly’s importance in that market.

It was ultimately held by Judge Caddick that there is no risk of injury to the distinctive character of Oatly’s marks and that Glebe Farm was not taking unfair advantage of Oatly’s marks simply by using elements of those marks that are descriptive, namely, the letters “OAT”.

Philip Raynor, who co-owns Glebe Farm with his sister Rebecca Raynor, stated after the judgement that they “felt certain” that they had done nothing wrong. In reaction to the decision, Mr Raynor commented that “it is enormously gratifying that the judge has ruled in our favour, and to see that smaller independent companies can fight back and win.”

Having had all of its claims dismissed by the High Court in this “David and Goliath battle”, Oatly has publicly stated it will not be appealing the judgement and has conceded that there is simply no use crying over spilled oat milk!

You can read the full judgement here.

This article was co-written by Trainee Solicitor, Clare Tuohy.