## Facts

- Oatly AB applied to register the English word mark “IT’S LIKE MILK BUT MADE FOR HUMANS” as an EU trade mark for various goods, including dairy substitutes and oat-based beverages.
- An EUIPO examiner refused registration for certain goods under Article 7(1)(b) of Regulation (EU) 2017/1001, finding the sign lacked distinctive character as a promotional slogan.
- The EUIPO Fifth Board of Appeal upheld the refusal, characterizing the sign as a laudatory marketing message rather than an indicator of commercial origin.
- Oatly sought annulment before the General Court under Article 263 TFEU.
- The relevant public was the general public in EU areas where English is an official language or widely understood, with an average level of attention.

## Issues

1. Whether “IT’S LIKE MILK BUT MADE FOR HUMANS” has the minimum distinctive character required by Article 7(1)(b) of Regulation (EU) 2017/1001 for the goods at issue.
2. Whether EUIPO applied an improperly strict distinctiveness standard to an advertising slogan by treating it as a mere promotional formula.

## Decision

- The General Court annulled the EUIPO Board of Appeal’s decision.
- The Court held the slogan possessed the minimum distinctive character necessary for registration for the goods concerned.
- The Court found the Board erred by treating the sign as purely laudatory despite elements that could indicate commercial origin.
- The Court emphasized that the adversative structure (“BUT MADE FOR HUMANS”) creates a contrast that can trigger reflection and memorability.

## Legal Principles

- Distinctiveness of advertising slogans is assessed under the same legal criteria as other marks, even if proving distinctiveness may be more difficult in practice.
- Advertising slogans are not excluded from registration per se; the mark need only meet a minimum degree of distinctiveness.
- A sign may simultaneously serve a promotional function and indicate commercial origin; the promotional character does not negate distinctiveness.
- EUIPO may not require an advertising slogan to display “imaginativeness” or “conceptual tension” as a separate legal condition for registrability.
- A slogan lacks distinctiveness only when it will be perceived solely as a mere promotional formula; it may be distinctive where it sets off a cognitive process and is easy to remember, making it capable of distinguishing origin.

## Conclusion

The General Court set aside EUIPO’s refusal because the slogan’s contrastive phrasing was capable of prompting consumer reflection and being remembered, allowing it to function as an indicator of commercial origin and thereby satisfy the low threshold of distinctiveness under Article 7(1)(b).


Oatly AB v. EUIPO, Case T-253/20 (Gen. Ct. Jan. 20, 2021)