Oatly Sues PureOaty For Trademark And Trade Dress Infringement

from the milking-it dept

Maybe it's something about being in a beverage industry that makes people treat trademark law as though it were something it most definitely is not. For years, we've discussed the trademark problem that the exploding craft beer industry has faced. Oatly, the Swedish company that produces that well known non-dairy milk product, is most certainly not in the alcohol business, but they appear to be aping the most aggressive members of that unrelated industry in a recent lawsuit filed overseas against a very small competitor, which makes a product called PureOaty.

Oatly, the Swedish oat milk maker with a market value of $15bn, has taken legal action for trademark infringement against a Cambridgeshire-based family farm over its PureOaty drink. The Malmo-based group accuses Glebe Farm Foods, which specialises in gluten-free oats, of infringing trademarks including the Oatly brand name and pack design, and of “passing off” the beverage as Oatly, according to documents submitted to the court.

Now, most of Glebe Farm Foods' business has nothing to do with selling oat-based milk substitutes. Instead, the company makes most of its money selling gluten-free oat-stuffs to food producers. But it does sell PureOaty as a side product, rebranded under its current name in early 2020. Notably, the oat-based milk industry is expanding quickly, with plenty of startups getting into the business. In other words, this very much looks like an early-stage version of the craft beer industry.

With that in mind:

Lawyers for Oatly and its UK business claim that when Glebe Farm rebranded its Oat Drink product as PureOaty in 2020, “Glebe Farm’s intention was to bring Oatly’s products to mind and thereby to benefit from the huge power of attraction and reputation of Oatly’s branding”.

Oatly’s lawyers claim that the name PureOaty calls to mind Oatly, while the product’s blue packaging and image of a teacup also recall the Swedish brand.

Okay, let's take these two claims, the basis for the lawsuit, in order. The claim that PureOaty calls to mind Oatly is odd. Sure, both brand names include the word "oat", but that's descriptive of what the milk product is made of. The "Pure" is, frankly, doing a lot of work in differentiating the two brands. All that's really left is the "y" at the end of each brand name and if that's where the confusion claim rests, well, that isn't very convincing at all.

As for the argument that the trade dress is going to be confusing, well:

If those two products confuse you, you need help. The color scheme is different, as is the placement of the branding and all the verbiage on the packaging. The only real commonality is, as Oatly called out, the inclusion of a tea or coffee cup. And the fact is that both of these products are used as creamers. Including a tea or coffee cup isn't particularly distinctive for these oat-milk products.

But, as is always the case when it comes to trademark bullying, this is likely happening at least in part because Glebe Farm Foods is tiny compared with Oatly. That's why trademark bullying works. Whether it does in this case I suppose will come down to how hard and long Glebe Farm Foods wants to fight back.

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Filed Under: oat milk, oatly, pureoaty, trademark
Companies: glebe farm foods, oatly


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  1. icon
    eaving (profile), 11 Jun 2021 @ 10:09pm

    Mug

    Frankly its even worse that implied in the article. The commonality of the coffee/tea mug is only actually on their barista blend. They use a cup of some sort across all of their oat milks, but the type of glass varies product to product.

    reply to this | link to this | view in thread ]

  2. identicon
    Bobvious, 11 Jun 2021 @ 11:00pm

    Purity

    Pronounced with that delightful Northern Ireland lilt, Pureoaty, sounds a lot like purity, which make some sense for a company trying to produce gluten-free foods.

    Oh, and Oatley (established 1883) in New South Wales, would like its name back, https://en.wikipedia.org/wiki/Oatley,_New_South_Wales

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 12 Jun 2021 @ 6:18am

    Should have left the cup off the label. It sure looks like a knockoff of Oatly, which is what they’re obviously trying for.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 12 Jun 2021 @ 7:50am

    I'd never heard of Oatly before today.

    Now I know what an utterly shitty piece of crap their marketing is, I suspect they may also be lacking in the hygiene, taste and environmental areas too.

    With that in Mind, I've made sure my employer doesn't stock or use Oatly brand products anywhere at all.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 12 Jun 2021 @ 7:52am

    Got a ton of people to write to the new owners of ASDA pointing out how terrible a bully Oatly is and how stocking their products would harm their companies reputation amongst ethical buyers....

    reply to this | link to this | view in thread ]

  6. icon
    Barry Winters (profile), 12 Jun 2021 @ 10:08am

    Perhaps One Too Many Barristers

    Who shall rid us of these vexatious lawyers?

    reply to this | link to this | view in thread ]

  7. identicon
    Crafty Coyote, 12 Jun 2021 @ 11:15am

    If you want millennials to do buy your vegan milk product, why not call it Oaty McOatface?

    reply to this | link to this | view in thread ]

  8. icon
    Slow Joe Crow (profile), 12 Jun 2021 @ 12:57pm

    Can we also address the false advertising inherent in calling a mixture of water, grain, and sugar "milk" when it doesn't come from a mammal.

    That comes under truth in advertising rather than trademark but there has been lobbying and the occasional lawsuit from the dairy farmers.

    reply to this | link to this | view in thread ]

  9. icon
    Federico (profile), 12 Jun 2021 @ 3:07pm

    Re: Usage of term milk

    Can we also address the false advertising inherent in calling a mixture of water, grain, and sugar "milk" when it doesn't come from a mammal.

    They don't (in EU), after a barrage of lawsuits from the dairy industry, recently copied by the animal-based meat industry.
    https://www.thedrum.com/news/2018/10/17/after-angering-swedish-dairy-industry-oatly-brings -controversial-ad-campaign-the-uk
    https://www.euractiv.com/section/agriculture-food/news/meps-save-v eggie-burger-from-denomination-ban/

    The cartons are emblazoned with slogans such as “No milk. No soy. No badness.”

    https://www.bloomberg.com/news/articles/2015-05-14/swedish-oat-milk-producer-benefits-f rom-dairy-industry-lawsuit

    Funnily, trademark protection was deployed to defend some of the slogans the dairy industry doesn't like.
    https://www.taylorwessing.com/en/insights-and-events/insights/2021/04/oatly-milk-made-for-huma ns-decision-confirms-that-a-memorable-slogan-can-be-a-trade-mark

    reply to this | link to this | view in thread ]

  10. icon
    Norahc (profile), 12 Jun 2021 @ 3:30pm

    Lawsuits like these only prove that the proverbial moron in a hurry is way smarter than some people running companies.

    reply to this | link to this | view in thread ]

  11. icon
    JoeCool (profile), 13 Jun 2021 @ 7:25am

    Re: Perhaps One Too Many Barristers

    We're about due for the Franchise Wars predicted in Demolition Man. Some company is going to decide that hiring mercenaries is cheaper than hiring lawyers, and we're off!

    reply to this | link to this | view in thread ]

  12. icon
    bhull242 (profile), 13 Jun 2021 @ 3:07pm

    What do they mean that the blue coloration calls to mind the Swedish brand? Their brand is clearly not blue.

    reply to this | link to this | view in thread ]

  13. icon
    BJC (profile), 14 Jun 2021 @ 8:46am

    Re:

    Without reading the complaint (why haven't you linked it, TechDirt? Don't you guys complain about that all the time?) my guess is that it's sort of a lateral argument.

    Oatly isn't blue-colored, but a lot of Swedish brands are (see, e.g., logos for Ikea, Skanska, or SAAB) because blue is one of the two colors of the Swedish flag.

    So the argument is, if someone's saying, "hey, I want the Swedish oat drink with the 'oat + y' name," they might pick Oaty instead of Oatly, being confused because lots of Swedish things are blue.

    I can't comment about the merits of it because I don't know UK/EU trademark law, which for all I know has different standards for confusion than American law.

    reply to this | link to this | view in thread ]

  14. identicon
    Naughty Autie, 14 Jun 2021 @ 10:25am

    "Whether it does in this case I suppose will come down to how much money Glebe Farm Foods has to fight back."

    FTFY. YW.

    In other news, M&S is suing Aldi for the appearance of their caterpillar cake, but at least they have a leg to stand on given Aldi's deliberate mimicking of trade dress.

    reply to this | link to this | view in thread ]


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