February 2026
Brands and Advertising
UKSC issues judgment on ‘POST MILK GENERATION’ trade mark and dairy term restrictions
On 11 February 2026, the UKSC dismissed Oatly AB’s appeal and held that the UK trade mark registration for “POST MILK GENERATION” is invalid for oat-based food and drink under section 3(4) of the Trade Marks Act 1994 because its use is prohibited by Regulation (EU) No 1308/2013 as assimilated law.
The UKSC held that “designation” in Point 5 of Annex VII, Part III is not limited to the name of the product and covers use of “milk” in respect of a relevant food or drink, so “milk” cannot be used for plant-based products even where it does not name the product.
The UKSC held that the second limb of the Point 5 proviso did not apply because “POST MILK GENERATION” was not clearly used to describe a characteristic quality of the product, and was ambiguous and more naturally read as describing a cohort of consumers.
The UKSC noted the registration remained valid for T-shirts, and agreed that “MILK-FREE” used for plant-based products would be prohibited but would be saved by the second limb of the provision.
Read more about the refusal in our February Brands Update here.
High Court (IPEC) issues judgment on account of profits in registered design threats proceedings
On 30 January 2026, the High Court of Justice (IPEC) issued an approved judgment in Luxe World Ltd v Touch of Vogue Ltd and another [2026] EWHC 148 (IPEC) on whether an account of profits can be claimed for an actionable threat of registered design infringement proceedings under section 26C of the Registered Designs Act 1949.
The court held that section 26C provides remedies limited to a declaration, injunction and damages, and that equity does not permit an account of profits for this non-proprietary tort, applying Devenish Nutrition Ltd v Sanofi-Aventis SA [2009] Ch 360 (CA).
The court struck out the claimant’s pleaded claim for an account of profits and held that HMCTS’s acceptance of a lower issue fee did not prevent the court ordering the claimant to state a value for the claim or pay the full fee.
Read more about the recent registered design proceedings from Fabio Lo Iacono, Grace Taylor and Louise Popple here.
ECJ ruling: oppositions/invalidity actions will fail if the prior rights cease to exist
On 5 February 2026, the ECJ held that prior rights relied on in opposition/invalidity actions must be valid and subsisting at the date the EUIPO rules. The ruling gives greater scope for defendants to thwart claims by counter-attacking for revocation for non-use. The judgment came in relation to Case C-337/22 P EUIPO v Nowhere on an opposition to the EU figurative mark APE TEES under Article 8(4) of Regulation (EC) No 207/2009.
This concerned a decision by the EUIPO to dismiss an EUTM opposition at the end of the Brexit transition period as that opposition was based on a prior UK passing off right. The EUIPO was of the view that, at the end of the Brexit transition period, all actions based on UK prior rights should be dismissed as the prior rights holders no longer had a continuing interest in the actions and the actions were devoid of purpose.
This decision to dismiss these actions was appealed by at least four UK prior rights holders – and this is the first of the appeals that really matter to reach the ECJ.
The ECJ ruled that, if a prior right ceases to exist for any reason during an action before the EUIPO (including the Board of Appeal), that right is no longer taken into account. It based its decision on numerous factors, including the wording of relevant trade mark legislation and the aims of opposition/invalidity actions to ensure that conflicting rights do not appear on the register.
While the decision relates to prior UK passing off rights relied on in an opposition that ceased to exist as a result of Brexit, it is fairly clear that the ruling extends beyond Brexit and to all prior rights whether raised in opposition or invalidity actions. It also applies not only to opposition/invalidity actions before the EUIPO, but also those in national EU member states (both administrative and court).
Read more about the decision from Louise Popple here.
