أوكرانيا

Case № 910/13105/21

Plaintiff: Wizz Air Hungary Zrt.

Defendant: State organization “Ukrainian National Office for Intellectual Property and Innovations”

Lawsuit re: recognition of the decisions as unlawful, cancellation and obligation to perform actions.

On August 20, 2024, the Commercial Cassation Court within the Supreme Court considered a case where Wizz Air Hungary Zrt. filed a lawsuit against the State organization “Ukrainian National Office for Intellectual Property and Innovations”. The plaintiff sought to overturn the Office's decision to refuse registration of the pink color (Pantone 233) as a trademark for air passenger transport services.

The lawsuit was based on Wizz Air's claim that the pink color had acquired distinctiveness through prolonged and substantial use in the market. The Intellectual Property Office, however, rejected the application, citing the color’s lack of distinctiveness as a stand-alone mark.

The Commercial Court of first instance ruled in favor of Wizz Air, accepting that the color had developed distinctiveness. However, the Appellate Court reversed this decision, arguing that the pink color had always been used alongside other elements like the "Wizz" name and additional colors, which diluted the distinctiveness of the pink color on its own.

The Supreme Court upheld the Appellate Court's ruling, emphasizing that color trademarks must meet strict standards of distinctiveness under Ukrainian law. The court concluded that the pink color, in the context of Wizz Air’s branding, was not independently distinctive enough to qualify for trademark protection. The Court supported the lower court’s view that Wizz Air's use of the color in combination with other elements meant it could not function alone as a trademark for the specified services.

The Supreme Court's decision reaffirmed the importance of distinctiveness in trademark law, especially concerning color trademarks. The Court carefully analyzed the legal requirements, emphasizing that a color, to be registered as a trademark, must clearly distinguish the goods or services of one entity from others. In this case, the pink color alone did not meet these criteria. The Court also highlighted that businesses must demonstrate that their use of a color has achieved distinctiveness in the minds of consumers without relying on other visual or textual elements.

This ruling sets a significant precedent in Ukrainian trademark law regarding the registration of non-traditional marks, such as colors. It emphasizes the need for clear, independent distinctiveness of a trademark and provides guidance on how courts will evaluate such cases. The decision illustrates the high threshold for proving that a color, by itself, can function as a trademark, influencing future cases involving non-traditional trademarks in Ukraine.