Like anywhere in the world, in Ukraine trade marks are commercial assets that increase business value. Demand is high, so it is reasonable to stop brand owners from monopolizing trade marks they are not using. Ukraine’s non-use procedure is complex—you must file a revocation action with the court as no administrative procedure is available. On top of that, COVID-19 and the ongoing war have made it even more confusing.

Section 18(4) of the Ukrainian Law No. 3689-XII on Protection of Rights to Trade marks for Goods and Services (Trade mark Law) gives any person the right to file a revocation action in court to cancel the registration entirely or partially if a trade mark is not used in Ukraine, in whole or in part for the goods and services listed in the registration certificate, continuously for five years.

Concurrently, under Article 198(1) of the EU-Ukraine Association Agreement, a trade mark is subject to revocation if it has not been put to genuine use in the relevant territory for a continuous period of five years, for the goods or services for which it is registered, and no valid reasons for non-use exist.

The non-use procedure seems simple at first glance, but the devil is in the details, so it is worth looking at recent developments and diving into the intricacies of trade mark non-use in Ukraine.

“Any person” means “interested person”

Starting with the standing requirement, Section 18(4) of the Ukrainian Trade mark Law ambiguously refers to “any person.” Since Ukrainian courts have traditionally interpreted this as “any person with an interest”, the wording has created confusion among lawyers and their clients and judges alike.

In 2023, the Northern Appeal Commercial Court clarified in case No. 910/10906/22, that Section18(4) of the Trade mark Law and Article 197 of the EU-Ukraine Association Agreement guarantee the right of any person to file a revocation action with the court. In other words, the owner of a non-used trade mark is presumed to have violated the plaintiff’s legally protected interest and separate proof of such interest is not required .

However, the Supreme Court reversed and remanded the above decision, emphasizing that “any person” must prove that their legally protected interest is violated by the non-used trade mark (Supreme Court, Case No. 910/10906/22, November 30, 2023, Cl. 8.82-8.90). According to the court, under Section 15(2) of the Civil Code of Ukraine, such interest should not contradict the general principles of civil legislation, for example, a plaintiff’s concurrent use of a similar or identical trade mark in another jurisdiction, or plans to use it in Ukraine, may qualify as a legally protected interest. Although the criteria for establishing this fact are low, evidence should support the plaintiff’s interest in the mark.

Who bears the burden of proof?

Another point of confusion arises in revocation cases. While the Trade mark Law clearly places the burden of proving use or excusable non-use on the defendant, it does not specify who, if anyone, bears the burden of proving non-use.

The Supreme Court resolved this issue by clarifying that in revocation cases, proving the fact of trade mark non-use is crucial. Although the burden of proof in such cases lies with the defendant, the adversarial principle governs civil and commercial proceedings, so each party must substantiate the claims or objections it asserts. In any event, one should not construe the adversarial principle as a “transfer” of the burden of proof (Supreme Court, Case No. 910/10906/22, November 30, 2023, Cl. 8.23,8.26).

In practice, however, the plaintiff always conducts a use investigation to substantiate the claims, which typically includes sending inquiries to the relevant official authorities and conducting market research to reveal any use of the conflicting trade mark, inter alia, in media or advertising, during the past five years. The results of such an investigation (e.g., official responses, reports, etc.) constitute rebuttable evidence in the case.

Therefore, while the plaintiff initially bears the burden of proving the trade mark non-use, this burden may shift to the trade mark owner to prove either genuine use or excusable non-use.

What does “use” mean in Ukraine?

In Ukraine, a trade mark must be used for all goods or services listed in its certificate of registration. Ukrainian courts do not apply the “genuine use” doctrine in revocation cases, as interpreted under EU law, even though Articles 197-198 of the EU-Ukraine Association Agreement are fully enforceable. Instead, to prove use, the defendant should show “at least some” of the following forms of use under Section 16(4) of the Trade mark Law:

• Application of the trade mark to any registered goods, packaging, signboards, labels, tabs, tags, or other items attached to the goods;
• Storage of trade marked goods intended for sale;
• Sale, import, or export of trade marked goods;
• Use of the trade mark while providing registered services; and
• Use of the trade mark in business documentation, advertising materials, or online platforms.

A trade mark is considered to be in use if it is applied in the form in which it is registered, or in the form that differs only in elements which do not alter the distinctive features of the trade mark in general.

Courts have established key exceptions to the “at least some” rule under Section 16(4): a mere license or assignment agreement cannot prove the use of the trade mark, and additional evidence must be submitted (Grand Chamber of the Supreme Court, Case No. 910/8781/23, March 5, 2025, Cl. 104).

The trade mark must be used strictly for the goods and services listed in the registration, for example, the installation of equipment as part of the technological process in building construction does not constitute a separate service for equipment installation. Individual actions aimed at achieving the final resultthe construction of a finished house— do not constitute the provision of distinct services (Supreme Court, Case No 910/5815/21, April 6, 2023, Cl. 8.27-8.28).

Change of ownership does not excuse non-use

A trade mark may be revoked if it has not been used for a continuous period of five years, starting either from the date of registration or from a later date. This five-year period is considered continuous and uninterrupted, even if the trade mark was assigned and its ownership changed during that time (Grand Chamber of the Supreme Court, Case No. 910/8781/23, 5 March 2025, Cl. 85-92).

In this groundbreaking decision, the Grand Chamber, drawing on the judgment of the General Court of the European Union in the case T‑12/20, Schneider v EUIPO — Frutaria Comercial de Frutas y Hortalizas (Frutaria), overruled a long-standing line of Supreme Court precedent, which held that the five-year period of continuous non-use of a trade mark began on the date the new owner obtained the rights to use the disputed mark from the previous owner.

Excusable non-use

In general, the court cannot revoke a trade mark registration if the defendant demonstrates valid grounds for excusable non-use. The Trade mark Law emphasizes that such grounds must be beyond the owner’s control and identifies only one ground—limitations on importation or other requirements affecting the goods and services, as established by the legislation.

Defendants have successfully relied on this expressly recognized ground as a defense. For example, non-use of the mark in Class 41 for “casino services; services related to games for money" was excused due to a statutory ban, since in the period from 2009 to 2020, the Law On the Prohibition of Gambling Business in Ukraine was in force (Kyiv Appeal Court, Case No. 757/20684/22-ц, February 24, 2025).

Liquidation

Another established ground is the debtor’s ongoing liquidation procedure. Under the Code of Ukraine on Bankruptcy Proceedings, three stages may apply during the bankruptcy proceedings depending on the debtor’s circumstances: (1) disposition of property, (2) sanation (i.e., rehabilitation), and (3) liquidation. Unlike disposition or sanation, during the liquidation stage the debtor must cease all business activities, rendering trade mark use impossible.

Another rationale for excusing non-use is that the liquidator must sell the trade mark, as the debtor’s liquidation asset, to satisfy creditor claims. Therefore, trade mark revocation, in fact, destroys the asset, violating the rights of both the debtor, who seeks to preserve his property, and the creditor, whose interest lies in securing the highest possible repayment of creditor claims, regardless of the trade mark’s value (Northern Appeal Commercial Court, Case No. 910/17927/20 (910/12658/23), October 22, 2024).

Force Majeure

Two grounds for excusable non-use are especially important in this context: the direct impact of war, and the owner’s inability to use the trade mark in the temporarily occupied territories. Courts are generally reluctant to excuse non-use on these grounds and require concrete evidence of their direct impact on the specific facts of the case.

The Supreme Court examined the war-related non-use issue in case No. 910/10377/23, where the defendant argued that trade mark non-use should be excused due to the suspension of business activities caused by war. He noted that a letter from the Chamber of Commerce and Industry of Ukraine (CCI) dated February 28, 2022 certifying the military aggression by the Russian Federation as a force-majeure event confirmed these circumstances.

The Supreme Court disagreed with this approach, emphasizing that the full-scale invasion, even if recognized as force majeure, is not prejudicial per se. The party invoking force majeure must prove not only its general existence, but also that it constituted force majeure in the specific case. Crucially, the party must prove the causal link between the force-majeure event and the inability to perform a specific obligation. Therefore, the CCI’s letter February 28, 2022 was insufficient to certify excusable non-use (Supreme Court, Case No. 910/10377/23, September 17, 2024).

As parts of Ukrainian territory have been under temporary occupation since 2014, the time required for business relocation has given rise to the issue of possible excusable non-use. The Supreme Court has not had the opportunity to examine this ground, while the lower courts have consistently, with some exceptions, declined to recognize such non-use as excusable.

In a recent case before the Pechersk District Court of Kyiv, the defendant argued excusable non-use of his mark due to the full-scale invasion and occupation of Mariupol. He lives outside Ukraine and left most of his business records in Mariupol, where the mark, registered under classes 35 and 42, was primarily used.

The court highlighted that:

(1) The defendant did not relocate his business from the temporarily occupied territory;
(2) Relocation of a service-based business is feasible as it does not require the transfer of, for example, production facilities, warehouses and manufactured goods;
(3) Section13(2) of the Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine,” permits economic activity by businesses registered in the temporarily occupied territory only after changing their tax address to an unoccupied territory of Ukraine. Until a business makes this change, any transaction is considered null and void; and
(4) Providing services constitutes a business transaction carried out under a contract, and therefore, in absence of any other evidence, the defendant should submit financial documents to demonstrate the actual use of the mark.

Since the defendant failed to update the tax address of his business or provide evidence of use prior to the occupation and given that any transaction confirming use within the temporarily occupied territory is deemed null and void, the court concluded that non-use was inexcusable and accordingly revoked the registration (Pechersk District Court of Kyiv, Case No. 757/39111/24-ц, April 2, 2025, affirmed by Kyiv Appeal Court on October 21, 2025).

The above examples highlight that proving non-use of a trade mark for revocation in Ukraine is not simple. Moreover, it is also difficult to demonstrate scenarios where non use is excusable because of force majeure, liquidation or tightly regulated industries like gambling.

First published on the INTA Bulletin website on 24 February 2026.