Pink Color as a Trademark: Ukraine’s Supreme Court Ruling ⚖️

In the world of business, intellectual property plays a pivotal role, especially when it comes to unconventional trademarks like colors. Can a single color become a protected brand? This question is increasingly relevant for entrepreneurs seeking unique ways to stand out in the market. In our “Intellectual News” section for business lessons, we dive into a landmark court case that began in 2021 and concluded in Ukraine’s Supreme Court. This is not just a legal precedent but a crucial lesson for businesses on trademark registration, competition, and brand protection. 🚀

Case Background: Wizz Air vs. IP Office 📅

In May 2018, Hungarian airline Wizz Air Hungary Zrt. submitted an application to Ukrpatent (now the IP Office) to register a trademark in the form of a pink color (Pantone 233; CMYK: C12 M100 Y0 K0; RGB: R198 G0 B126; HEX: #C6007E; RAL 4010). The company claimed that this color had become recognizable due to years of use in advertising and services in the Ukrainian market. 🌸

However, the IP Office denied the registration, arguing that the color lacked distinctiveness and could not independently serve as a trademark. Wizz Air disagreed and took the matter to court, asserting that the pink color is associated with their brand in the field of air transport (Class 39 of the Nice Classification: passenger air transport and airline services). This became Ukraine’s second court case involving “single-color” trademarks, drawing significant attention from the business community. 💼

Business Lesson: This case highlights the importance of gathering evidence of brand use. Companies aiming to register unconventional trademarks, such as a color, must clearly demonstrate that the element distinguishes them in the market without additional words or graphics.

Court Proceedings: From Victory to Defeat 🏛️

Case No. 910/13105/21 began in the Kyiv Commercial Court. On June 1, 2022, the court of first instance ruled in favor of Wizz Air, recognizing that the pink color had acquired distinctiveness through prolonged use. However, on May 30, 2024, the Northern Commercial Court of Appeal overturned this decision and rejected the claim.

The appellate court’s decision was based on a detailed analysis of evidence, including four expert opinions. It found that Wizz Air does not use the pink color independently—it is always combined with other colors (white, purple, blue) and brand elements like the “Wizz” logo. Additionally, a 2021 sociological survey could not confirm the color’s association with the brand as of 2018 (the application date), as it lacked retrospective validity. 📊

The court also considered the global context: other airlines worldwide use pink, and registering it as a trademark could restrict competition in Ukraine. This could create barriers for market entry and disadvantage competitors. Business Lesson: Trademark registration must not undermine free competition—a core principle of intellectual property law. ⚠️

Wizz Air appealed to the Supreme Court, requesting the case be transferred to the Grand Chamber due to an “exceptional legal issue.” However, on August 20, 2024, the Commercial Cassation Court upheld the appellate decision, confirming the refusal’s legality.

Supreme Court’s Key Findings: Criteria for Registering a Color as a Trademark 🔍

The Supreme Court emphasized that registering a color as a trademark requires proving its distinctiveness. The key test: does the color allow consumers to clearly distinguish one company’s goods or services from others without confusion? Consumers must perceive the color as a standalone mark, independent of additional elements like logos or text.

Distinctiveness through use is possible only under exceptional circumstances: for a limited range of goods or services in a specific market. The court referenced a prior precedent (Case No. 910/9610/18), where similar arguments were rejected. Wizz Air’s request to transfer the case to the Grand Chamber was denied due to insufficient justification.

Business Lesson: Entrepreneurs must prepare robust evidence, including up-to-date sociological surveys, expert opinions, and usage data. Registering an unconventional trademark like a color requires meeting stringent standards, or businesses risk wasting time and resources. 📈

Why Are Colors Rarely Trademarks? 📚

According to Article 5 of Ukraine’s Law “On the Protection of Rights to Marks for Goods and Services,” a trademark can be any designation, including colors. However, colors are typically decorative and lack strong distinctiveness. The limited number of recognizable colors means their registration could “exhaust” the palette, restricting other market players.

A color can gain protection only under exceptional circumstances: after prolonged use with evidence that it is associated with a specific brand. Globally, successful “color” trademarks exist, such as Christian Louboutin’s red sole or EasyJet’s orange, but Ukrainian courts apply strict standards to maintain competitive balance. 🌍

Takeaways for Businesses and Next Steps 💡

This case is a valuable lesson for entrepreneurs seeking to protect unique brand elements. It underscores the need to:

Gather compelling evidence of a brand’s association with an element (e.g., a color).
Ensure compliance with competition laws during trademark registration.
Prepare for a potentially lengthy legal process in case of refusal.

If you’re a business owner, consider how to integrate distinctive elements into your brand while consulting intellectual property lawyers to ensure compliance.

What’s your take? Should Ukraine simplify the registration of colors as trademarks? Share your thoughts in the comments! 💬

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