The Supreme Court of Ukraine has put an end to the dispute that has been ongoing since 2021 regarding the registration as a trademark of the signature pink color of the Hungarian airline Wizz Air.
In May 2018, a Hungarian airline applied for trademark registration in Ukraine in the form of pink color (pink: Pantone 233; с12 m100 у0 k0; r198 g0 b126; hex #c6007е; ral 4010).
Ukrpatent refused to register the designation with the argument that such a color has not acquired distinctiveness relative to the applicant, and therefore cannot become a trademark.
Wizz Air appealed this decision in court.
The airline provided arguments that the color acquired distinctiveness over the years of the company’s continuous operation on the Ukrainian market and the use of pink in advertising companies and when providing services.
The arguments of the Ukrainian IP Office were based on the fact that the materials provided by Wizz Air do not prove that the pink color as such has acquired distinctiveness in relation to the air carrier during the provision of class 39 services “air passenger transportation; airline transportation services” and is perceived by consumers only in a combination of colors and sometimes with the “Wizz” trademark.
The court of first instance satisfied the claim of the Hungarian airline, while the Court of Appeal sided with the IP Office.
The court of appeals, having examined the evidence (including four expert opinions) for their appropriateness, admissibility, and reliability in order to confirm or refute the circumstances of the plaintiff’s use of the pink color sign applied for registration, established that the plaintiff does not use the pink color as an independent object without other elements, but uses only with a simultaneous combination of a combination of colors: white, shades of pink, purple, blue, cobalt and sometimes in combination with registered marks.
Also, the appellate court indicated that Wizz Air was not provided with evidence of the existence of other airlines in Ukraine at the date of the application, which would use the pink color when providing class 39 services, which is erroneous, because:
- the case files contain evidence of the existence of such airlines throughout the world,
- taking into account the specifics of activities in the field of international passenger air transportation and aviation works, there is an undeniable possibility of the operation of such airlines in Ukraine in the future.
The court decided that the satisfaction of the stated claims may put competitors in deliberately unfavorable conditions due to the presence of the plaintiff’s corresponding registered mark and will limit competition in the market, as well as complicate the process of entering the Ukrainian market of the above-mentioned global airlines.
The Supreme Court supported the position of the Court of Appeal and confirmed the legality of the refusal to register a trademark.