Milk Wars: The IP of a Plant Based Revolution

As plant-based milks reshape the dairy market, trademark law defines their identity. With “milk” legally tied to dairy, brands rely on distinctive names, visual branding, and consumer perception to build goodwill and compete within FDA and trademark guidelines. 

Before the 2010s, milk was simple. For ages, “milk” referred exclusively to the liquid produced by cows, legally defined by the Food and Drug Administration as “. . . the lacteal secretion…obtained by the complete milking of one or more healthy cows.” 21 C.F.R. § 131.110(a) (2005). Today, plant-based alternatives have reshaped the dairy aisle. Antoine Abrieux et. al., The Evolving Market For Plant-Based Milk: Alfalfa and Other Potential Sources 2 (2022). Products like almond, oat, and soy milk accounted for roughly 16% of the total milk market in 2021. Id.

The introduction of a new range of beverages in the milk aisle that are not a mammary secretion raises a legal question: can plant-based milk be called milk at all? Statutory regulations state that a food is “misbranded” if it uses a name that fails to conform to its statutory definition. 21 U.S.C. § 343(g). Major dairy lobbyists have repeatedly attempted to tighten this standard and ban the word “milk” on plant-based products through the Dairy Pride Act in 2018, 2023, and 2025, though the legislation has not passed. H.R.778, 115th Cong. (2018); S. 549, 118th Cong. (2023); S. 2507, 119th Cong. (2025).

However, courts and the FDA have recognized that consumers understand plant-based milks are not dairy products, allowing the products to continue to be called milks. Painter v. Blue Diamond Growers, 757 Fed.Appx. 517 (2018); Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statements, 88 Fed. Reg. at 11449.In their draft guidance, which is not binding law, the FDA focused on whether the average consumer is likely to be misled, rather than whether the term “milk” is technically accurate. Id. They noted that there is a consensus of consumer understanding when it comes to the identity of plant-based milks, but conceded that most consumers do not fully understand the nutritional distinctions between dairy and plant-based milks. Id. To address this gap, the draft guidance encourages voluntary nutrition disclosures rather than name and label restrictions on the term “milk.” Id.

Milk producers inherently possess a degree of goodwill due to the nature of their product. See 12 J. Contemp. Legal Issues 194 (2000) (emphasizing the effect goodwill has on consumers in trademark law). In contrast, plant-based milk producers must cultivate their own goodwill through trademarks. See Id. By relying on distinctive names, phonetic familiarity, and visual branding, these companies evoke consumer trust and establish identity within regulatory limits. See e.g., Rebecca Tushnet, Registering Disagreement: Registration in Modern American Trademark Law, 130 Harv. L. Rev. 867, 873-74 (2017) (discussing how trademark regulation affects consumer perception). Consequently, much of the plant-based milk market relies on trademark law to evoke consumer understanding. See, e.g., Heather Lalley, MALK Organics Releases New Labels, Removes the Word “Milk”, Refrigerated & Frozen Foods (May 11, 2021), https://www.refrigeratedfrozenfood.com/articles/92599-malk-organics-releases-new-labels-removes-the-word-milk (noting that MALK Organics emphasizes distinctive branding and packaging to convey its dairy-free identity). In a market where statutory definitions restrict terminology and recipes generally cannot be patented, trademarks allow plant-based milk producers to attain recognition and compete with traditional dairy. Id.; 35 U.S.C.S. § 102 (2025); See Kitchen v. Ross, No. 20-cv-00893-RS, 2021 U.S. Dist. LEXIS 193462, at *14-*16 (N.D. Cal. 2021) (noting the regulatory limits on plant-based labeling and trademark’s role in competition where there is inconsistency in food labeling standards).

Trademark law uses a spectrum of mark strength. Strong Trademarks, United States Patent and Trademark Office, https://www.uspto.gov/trademarks/basics/strong-trademarks (last visited Oct. 10, 2025). Generic terms, like the word “milk”, name a product itself and cannot be protected. Id. Descriptive marks identify a quality or feature of a product, while arbitrary and fanciful marks, which are unrelated to the product’s nature or entirely made up, receive the strongest protection. Id. A trademark’s strength depends on how consumers perceive and associate it with a source. USPTO v. Booking.com B.V., 591 U.S. 549, 556 (2020).

Historically, dairy relied on emotional branding and creative IP, from Borden’s Elsie the Cow, to the iconic “Got Milk?” campaign. Meet Elise, Borden Dairy, https://www.bordendairy.com/meet-elsie/ (Last visited Oct. 10, 2025); Got Milk?https://www.gotmilk.com/ (last visited Oct. 10, 2025). Dairy producers want to signal to consumers that their milk is trustworthy and pure. See Id. However, traditional milk products are largely interchangeable, outside of organic or hormone-free certifications, making extensive trademark and design innovation irrelevant. See Tushnet, supra, at 873-74.In contrast, plant-based milk companies are unable to patent their recipes and lack the inherent nutritional associations of dairy. See Barbara Walther et al., Comparison of Nutritional Composition Between Plant-Based Drinks and Cow's Milk, 9 (2022).

The brand Malk Organics created a fanciful mark that avoids descriptiveness but is phonetically similar enough to “milk” to evoke familiarity. MALK, Registration No. 4798915. Malk’s founder, August Vega, has also remarked that they removed the word milk from their packaging to distinguish themselves in this saturated market and rely on their name and branding to indicate who they are. Simon Mainwaring, Why Malk Organics Is Really Into Labels, Forbes, (Jul. 6, 2023), https://www.forbes.com/sites/simonmainwaring/2023/07/06/why-malk-organics-is-really-into-labels/. Similarly, Silk has created a brand name that uses phonetic similarity and evokes texture, all while remaining legally protectable. SILK, Registration No. 5073633.

However, there are only so many ways to remain phonetically similar to the prohibited word “milk.” Oatly, for instance, has built a recognizable aesthetic that uses bold typography and trademarking slogans like “Wow no cow.” Oatly, https://www.oatly.com/en-us (last visited Oct. 10, 2025); THE ORIGINAL OATLY!, Registration No. 6465760; WOW NO COW, Registration No. 7135213. Similarly, Califia Farms has a range of plant-based products, each with packaging that alludes to the plant-based nature of the product through a minimalist aesthetic and botanical graphics and logos. Califia Farms Plant Milks, https://www.califiafarms.com/product-categories/plant-milks/ (last visited Oct. 10, 2025); Califia Farms, Registration No. 4598774. Uproot’s minimalist carton design rejects the pastoral scenes of traditional dairy packaging, instead signaling modernity and sustainability. Uproot, https://uprootmilk.com (last visited Oct. 10, 2025). But their slogan, “It’s not, not milk”, is a clever yet confusing marketing tactic that leaves consumers unsure of nutritional value. See Id. The brand Ripple incorporated nutrition disclosures on its packaging, with its branding emphasizing nutritional information as a large panel on the front. Ripple, https://ripplefoods.com (last visited Oct. 10, 2025).