The Court of Justice of the European Union’s (CJEU) long-awaited judgment in Case C-298/23, Inter IKEA Systems v Algemeen Vlaams Belang and Others, provides important guidance on the relationship between trademark rights and freedom of expression. The case addresses a question that had remained unresolved at EU level despite attracting considerable academic and practical interest: can freedom of expression constitute a “due cause” capable of justifying the unauthorized use of a reputed trademark?
The answer is significant for any business that relies on the strength of its brand. While the CJEU recognized that freedom of expression can, in principle, justify certain uses of reputed trademarks, it set out a demanding balancing test that preserves meaningful protection for proprietors of well-known brands.
What happened?
The case arose after the Belgian political party Vlaams Belang launched an immigration policy proposal called the “IKEA-Plan – Immigratie Kan Echt Anders” (“IKEA-Plan – Immigration Really Can Be Different”), using signs corresponding to the IKEA trademarks and visual elements resembling IKEA assembly instructions. The campaign was promoted at a press conference, on social media, and on the party’s website.
Inter IKEA Systems BV, the proprietor of the IKEA trademarks, brought infringement proceedings against Vrijheidsfonds VZW (Vrijheidsfonds), the association responsible for the campaign. Vrijheidsfonds acknowledged the use of the IKEA trademarks but argued that it was protected by freedom of expression and therefore justified by “due cause” under EU trademark law. The Belgian court therefore asked the CJEU to clarify whether freedom of expression can constitute such due cause.
Freedom of expression can constitute “due cause”, but not automatically
The CJEU confirmed that the concept of due cause under Article 9(2)(c) of the EU Trademark Regulation and Article 10(2)(c) and (6) of the Trademark Directive is not limited to objectively overriding reasons but may also reflect the subjective interests of the third party using the sign, including reliance on freedom of expression. Since neither instrument defines “due cause”, and both must be applied in a way that fully respects fundamental rights, the CJEU held that a trademark proprietor’s exclusive rights may be limited by a third party’s freedom of expression, so that this freedom may, in principle, constitute due cause.
Crucially, however, the CJEU made clear that merely invoking freedom of expression does not provide an automatic defense. A third party relying on freedom of expression must set out the specific grounds for its use and demonstrate that those grounds take precedence over the rights and interests of the trademark proprietor.
A balancing test, not an automatic exemption
The CJEU held that national courts must strike a balance between the trademark proprietor’s right to property and the third party’s right to freedom of expression. Whether freedom of expression constitutes due cause must be assessed on a case-by-case basis.
The judgment identifies three broad considerations for this assessment. First, the third party must be acting in good faith. Use of a reputed trademark cannot be justified where the objective is merely to take unfair advantage of its reputation. By contrast, good faith may exist where the sign is used to express a view about the trademark, its proprietor, or its goods and services, or to contribute to a debate of public interest.
Second, courts must consider the extent to which the use contributes to a debate of public interest. Political speech and matters of public interest enjoy particularly strong protection, and the Court specifically recognized satire and parody as forms of expression warranting careful consideration.
Finally, courts must assess the consequences of the use of the trademark proprietor and its exclusive rights. Relevant factors include the intensity and scale of the use, the degree of similarity between the sign and the trademark, and whether the use creates the impression that the proprietor endorses or supports the message conveyed.
Applying these considerations, the CJEU examined whether there was any genuine reason to use the IKEA trademarks in the political campaign. It observed that the IKEA acronym has no semantic meaning that would necessitate its use and could not be seen as having become a public cultural reference or part of everyday language. Although asylum and immigration policy may constitute a matter of public interest, the Court considered it significant that the debate had no real connection to IKEA itself. In its view, the trademarks appeared to have been used primarily to benefit from the reputation attached to them and thereby amplify the political message.
The CJEU also emphasized the extensive use of signs highly similar to the IKEA trademarks, their wide dissemination online, and the possibility that the public could perceive Inter IKEA as being associated with, or lending support to, the political message in question. On that basis, the CJEU indicated that the use did not appear to be justified by due cause, although the final assessment was left to the national court.
Two legal frameworks, but the same balancing exercise
The judgment also addresses the distinction between commercial trademark use and use falling outside the traditional trademark context. While Article 9(2)(c) of the EU Trade Mark Regulation ((EU) 2017/1001) and Article 10(2)(c) of the Trade Mark Directive ((EU) 2015/2436) apply only where a sign is used “in the course of trade” and “in relation to goods or services”, Article 10(6) of the Directive allows Member States to provide additional protection against certain uses falling outside that context.
The CJEU held that the same concept of due cause and the same balancing exercise apply under both frameworks. However, it noted that the outcome need not necessarily be the same, as non-commercial expression may enjoy broader protection than strictly commercial expression. It was left to the national court to determine which framework applied in the present case.
Freedom of expression does not override trademark rights by default
The judgment is likely to be welcomed by trademark proprietors concerned that recognizing freedom of expression as a possible “due cause” defense could significantly weaken the protection afforded to reputed marks. Although the CJEU accepted that freedom of expression may, in principle, justify the use of a reputed trademark, its analysis makes clear that the threshold is a demanding one.
At the same time, the judgment leaves room for legitimate uses of trademarks in political or social commentary. The CJEU’s reasoning suggests that due cause may exist where the trademark itself, its proprietor, its business practices, or its products form part of the debate, or where use of the mark is otherwise genuinely necessary for the exercise of freedom of expression. Genuine parody, criticism directed at the trademark or its proprietor, or use that is necessary because a mark has entered public or cultural discourse may therefore still qualify as due cause. The key distinguishing factor, according to the CJEU, is whether the third party is genuinely engaging with the trademark or its proprietor or merely exploiting the trademark’s reputation to amplify an unrelated message.
Looking ahead
The judgment provides trademark owners with a workable, if fact-intensive, framework for assessing unauthorized political or social use of their marks. For brand owners, the ruling confirms that a mark’s reputation remains protected even against uses framed as political expression, provided the owner can show that the use causes disproportionate detriment, exploits the mark’s reputation without a genuine connection to the mark itself, or risks being perceived as an endorsement of the message conveyed.
For political actors, campaigners, and other third parties, the decision is a reminder that invoking freedom of expression is not, by itself, sufficient. Reliance on a trademark with a reputation to amplify a message unrelated to that mark or its proprietor carries real legal risk, particularly where the use is intensive, widely disseminated, and could be perceived as suggesting the proprietor’s endorsement.
More broadly, the judgment provides the first clear EU-level framework for assessing when freedom of expression may justify the use of a reputed trademark. While the Court accepted that such justification is possible in principle, it also made clear that the outcome will turn on a careful assessment of the specific facts, the nature of the expression, and its connection to the trademark itself.
For more information on the topic and advice in relation to intellectual property, please contact Kati Rantala and Sonja Heiskala.