On September 8 2026, the Court of Justice of the European Union (CJEU) delivered its much-awaited ruling on the reconciliation of the rights conferred by a trademark with freedom of expression – more specifically, political freedom of expression – in Inter IKEA Systems v Vlaams Belang (C‑298/23).
Indeed, since trademarks are instruments of communication, what has long been described as the ‘expressive use’ of signs comes as no surprise (see, for example, “Expressive Genericity: Trademarks as Language in the Pepsi Generation”).
Political parties often employ them as elements of parody, drawing on the familiarity of their visual features and on the associations they evoke in order to criticise opponents, comment on political decisions, or present proposals of their own. Such use may be directed at the mark itself, at its proprietor, or at the latter’s commercial practices, but it may equally serve as a vehicle for a message on a matter of general interest bearing no direct relation to the undertaking. In such cases, the communicative power of the mark makes it possible to condense ideas and to render a message more readily recognisable to the public.
It is precisely here that the difficulty arises: in what circumstances should such use benefit from the protection of freedom of expression, and when does it amount to taking unfair advantage of another’s reputation? The answer calls for more than an abstract acknowledgment of the need to balance the rights at issue. It calls for a determination of how much room one is prepared to allow for the use of trademarks in political debate.
And it was on that boundary that the CJEU ruled. The case concerned a campaign by the Belgian party Vlaams Belang entitled “IKEA‑PLAN – Immigratie Kan Echt Anders” (“Immigration really can be different”). Its 15 migration policy proposals, presented as “ready to be assembled” by the Belgian government, were accompanied by signs corresponding to the IKEA marks and by illustrations featuring figures similar to those appearing in the assembly instructions for the company’s products.
In the infringement proceedings, Vrijheidsfonds – the association that ran the campaign in the name and on behalf of the party, and the sole defendant in respect of which the action was declared admissible – submitted that it had used the reputation of those marks to reinforce its message and increase its dissemination, invoking that very fact as “due cause”. The characterisation of that use as political parody stems chiefly from the referring court, which framed the question referred to the CJEU in those terms.
Four marks being at issue – three Benelux marks and one EU trademark – the concept of due cause was examined, on the one hand, in the light of Article 9(2)(c) of the EU Trade Mark Regulation and Article 10(2)(c) of Directive 2015/2436, and, on the other, of Article 10(6) of that directive. The dividing line between them lies not in the commercial nature of the use but in the manner in which the sign is used: point (c) requires use as a trademark, for the purpose of distinguishing goods or services; paragraph 6 covers precisely those uses that are not, whether they occur in the course of trade or outside it. Since the latter amounts to additional protection merely made available to EU member states, and taken up in the Benelux, any assessment in its light will concern the Benelux marks alone.
Reading the judgment leaves a contradictory impression. The CJEU sets out from an approach particularly favourable to political speech and to freedom of expression, yet ends by steering the concrete outcome in favour of the proprietor of the marks. It does so through an exercise in subsumption that is unusual, in its degree of concreteness, for a court that frequently remains at a high level of abstraction. Although it leaves the final assessment to the national court, it points clearly to the impossibility of justifying that use of the IKEA marks by due cause. The balancing exercise that it formally leaves open thus emerges heavily conditioned by its own findings.
The CJEU’s framework for assessing due cause
But let us proceed step by step. Drawing on settled case law, the court recalls that the concept of due cause is not defined in EU secondary law and requires a balancing of interests. It covers not only objectively overriding reasons but may also encompass the subjective interests of a third party using a sign identical or similar to a trademark with a reputation. For the purposes of that balancing, it identifies three sets of criteria.
First, the intention of the third party (the subjective element), whose use must correspond to the good-faith exercise of freedom of expression. That may be so where the aim is to convey an opinion relating to the mark, its proprietor, its commercial practices, or its goods and services but also where the aim is to initiate or feed a debate of general interest. The linguistic meaning of the sign, or its transformation into a public cultural reference or into part of everyday language necessary for communication in the context in question may likewise be relevant. Conversely, the national court must verify that the use is not driven by an intention to harm the mark with a reputation or its distinctive character, nor by the sole purpose of riding on its coat-tails, and that it does not amount, more generally, to use in bad faith. It is this limb that will bear the essential weight of the subsumption.
Secondly, the contribution of the expression to a debate of general interest and the strictly commercial nature, or otherwise, of the context in which it occurs. The enhanced protection of political speech and any satirical character of the expression are to be taken into account in that assessment.
Thirdly, the consequences of the use for the proprietor and for its exclusive right. Relevant in this regard are the intensity, the extent, and the modalities of the use; the degree of reputation of the mark; and the similarity of the signs. Regard must also be had to the possibility that the public may take the proprietor to endorse or support the political message, where the proprietor holds itself out as politically neutral or upholds values incompatible with that message. The balancing must therefore have regard to the proportionality of the harm imposed on the proprietor, who may have to tolerate a certain impairment of its interests but not disproportionate harm.
Three initial conclusions from the ruling
The judgment lends itself to a number of preliminary conclusions.
First, the relevance of freedom of expression to the assessment of due cause stands out. Usually placed among the ‘external limits’ to trademark law, that freedom – expressly referred to in Recital 27 of the EU Trade Marks Directive – finds in the concept of due cause a route for its balancing within the regime of trademark protection itself. It is therefore consistent to accept that political parody, as a manifestation of freedom of expression, may constitute due cause for the use of a trademark with a reputation.
Most such uses will tend to benefit from that protection: they will be harmless and readily recognisable as manifestations of political speech, without suggesting that the proprietor of the mark endorses the message conveyed. In such cases, the sign operates as an expressive resource resting on references shared with the public. The mere benefit derived from its renown should not, of itself, be conflated with taking unfair advantage of its reputation.
Secondly, the concept of due cause takes on a function akin to a ‘fair use’ clause within the protection of marks with a reputation. The assessment turns on a case-by-case balancing, guided by a non-exhaustive set of criteria covering the purpose and the modalities of the use and the intensity of the mark’s reputation and the consequences for its proprietor. Reputation thus matters not only as a precondition of the enhanced protection but also in assessing the limits of that protection.
The flexibility of this model allows the diversity of expressive uses to be accommodated, although it may render the identification of permissible uses less predictable. The role assigned to the intensity of the reputation in that balancing is, however, open to question. Reputation already constitutes a precondition of the enhanced protection, so that taking it into account in the assessment of due cause may end up favouring the proprietor twice over. Moreover, the very public recognition capable of magnifying the consequences of the use is also what endows the mark with its expressive value. The balancing exercise ought to reflect that ambivalence, avoiding a situation in which greater reputation translates, of itself, into less room for freedom of expression.
A narrower space for political parody?
Finally, the room allowed for political speech proves narrower than the reasoning would suggest. While acknowledging that the debate on asylum and immigration policy is one of general interest, the CJEU rules out due cause on the ground that that debate bears no relation to the IKEA marks as such, the use doing no more than riding on their coat-tails. There is thus introduced a requirement of connection between the expression and the mark that the list of criteria did not announce and that their alternative formulation appeared precisely to dispense with – a requirement corresponding, in essence, to the distinction between parody that targets the mark and parody that merely uses it as a vehicle, a distinction the CJEU did not embrace in copyright law.
The result is paradoxical: greater protection is afforded to those who criticise the proprietor, and thereby harm it directly, than to those who use the sign as an expressive resource in a debate unconnected with it – the very scenario that covers the generality of political uses of trademarks. To that requirement is added the criterion of the proprietor’s neutrality, akin to a right not to be associated with certain messages, dispensing with any likelihood of confusion and sensitive to the content of the speech. Taken together, they appreciably reduce the room that the initial recognition appeared to promise.
