On the 8th of May 2023, a Belgian court, the Nederlandstalige ondernemingsrechtbank Brussel 1, referred a question to the Court of Justice of the European Union in Case C-298/23 Inter IKEA Systems BV v Vlaams Belang, raising an important issue at the intersection of trademark law and freedom of expression.
The dispute concerned the use of the well-known IKEA trademark by the Belgian political party Vlaams Belang in connection with its proposals for immigration and asylum reform. The party promoted its programme under the title ‘IKEA-PLAN’, with the acronym standing for ‘Immigratie Kan Echt Anders’ (‘Immigration Really Can Be Different’). Inter IKEA Systems challenged this use, relying on the enhanced protection afforded to reputed trademarks firstly under Article 9(2)(c) EUTMR 2 and Article 10(2)(c) EU Trade Marks Directive 3, and secondly, under Article 10(6) of the said Trade Marks Directive. These provisions, which apply in different circumstances as discussed below, enable the proprietor of a reputed mark to prevent the use of an identical or similar sign where, without due cause, such use takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the mark.
At the heart of the reference lay the interpretation of the concept of “due cause”. EU trademark legislation does not define the term. However, the concept has been developed on a case-by-case basis, particularly in Leidseplein Beheer and De Vries (C-65/12), where the Court rejected an interpretation confined to objectively overriding reasons and recognised that due cause may also encompass the subjective interests of a third party using a sign identical or similar to a reputed trademark. Equally significant is the fact that neither the EUTMR nor the Trade Marks Directive (which is transposed into the national laws of the Member States, including the Maltese Trademarks Act, Chapter 597 of the Laws of Malta) contains an express exception permitting the use of trademarks for parody, criticism or political commentary, notwithstanding the recognition within their recitals of the importance of safeguarding freedom of expression. The broader development of fundamental-rights balancing within EU intellectual property law can also be seen in Deckmyn (C-201/13), which, although arising in copyright law, is relevant to the treatment of parody as a form of expression, and Pelham (C-590/23), to which the Court referred in IKEA when discussing the balance between intellectual property and freedom of expression.
The referring court therefore asked whether freedom of expression protected under Article 10 ECHR 4 and Article 11 of the Charter of Fundamental Rights of the European Union, including political expression and political parody, may constitute “due cause” capable of justifying third-party use of a reputed trademark, within the meaning of the mentioned provisions.
In his Opinion delivered on the 13th of November 2025, Advocate General Szpunar considered that freedom of expression does not, in itself, constitute “due cause”. Rather, the reasons which justify giving freedom of expression precedence over the trademark proprietor’s rights may constitute due cause following a balancing of the competing interests. He placed particular emphasis on the connection between the trademark and the expression conveyed. The justification for use is stronger where the expression concerns the trademark, its proprietor or its goods or services, whereas using a reputed mark merely to exploit its power of attraction and reinforce an unrelated political message is more difficult to justify.
The Advocate General also examined an important threshold question, that is, whether the sign was used “in the course of trade” and “in relation to goods or services”, as required for Article 9(2)(c) EUTMR and Article 10(2)(c) of the Trade Marks Directive to apply. He considered that a political programme is not itself a product or service, although certain associated uses, including promotional materials or online promotion, may satisfy those requirements. The Court subsequently addressed the same threshold issue, noting that a not-for-profit organisation’s use may fall within the scope of trade where it acts as an economic operator, and by acknowledging and endorsing the AG’s view concerning associated promotional uses possibly relating to goods or services. This determination provides useful guidance to national courts dealing with analogous matters.
In its Grand Chamber judgment delivered on the 8th of September 2026, the CJEU confirmed that freedom of expression, including political expression and political parody, may constitute “due cause” under EU trademark law. However, the mere invocation of freedom of expression is insufficient. The third party must identify the specific reasons connected with the exercise of that freedom which justify the use of the particular trademark and demonstrate why those reasons should take precedence over the rights and interests of the trademark proprietor.
The Court approached “due cause” as a mechanism for balancing two competing fundamental rights, that is, freedom of expression under Article 11 of the Charter and the proprietor’s intellectual property rights which also constitute a fundamental right under Article 17(2) of the Charter, since neither of the two rights is absolute. National courts must therefore consider all the relevant circumstances of the particular case. These include the intention and good faith of the third party, the relationship between the trademark and the message conveyed, the nature of the expression, including whether it contributes to a debate in the public interest, and the consequences of the use for the proprietor.
The connection between the trademark and the expression is particularly significant. The justification for using the sign may be stronger where it is genuinely used to convey an idea or opinion concerning the trademark itself, its proprietor, its commercial practices, goods or services, or to initiate or contribute to a debate in the public interest. Use may also be justified where it is necessary for other reasons, for example because an element of the mark has an independent linguistic meaning or because the mark has become a public cultural reference or part of everyday language. Conversely, where a reputed trademark is selected primarily to benefit from its power of attraction and reputation and thereby increase the impact of an otherwise unrelated message, establishing due cause becomes more difficult.
The Court nevertheless recognised the particular importance of political speech and debates on matters of public interest, in respect of which there is little scope for restrictions on freedom of expression. Satire and political parody may therefore attract significant protection. Their political or parodic character, however, does not automatically establish due cause. The question remains whether the use of the particular trademark can be justified as part of that expression.
The consequences of the use for the proprietor also form an important part of the balancing exercise. Although a finding of due cause may require a proprietor to tolerate some detriment to its mark, the Court held that it cannot be required to tolerate use causing disproportionate detriment or adversely affecting the substance of the exclusive rights conferred by registration. Relevant considerations may include the intensity and extent of the use, the methods by which the mark is used, the reputation of the trademark and the degree of similarity between the sign and the mark. Significantly, the Court also identified the risk of implied endorsement as a relevant consideration. Use of a trademark may create the impression that its proprietor agrees with or supports the political message being conveyed, which may be particularly significant where the proprietor seeks to maintain political neutrality or where their values are incompatible with that political message.
Whilst AG Szpunar’s earlier opinion had declined to interpret Article 10(6) of the Trade Marks Directive, considering it to fall outside the scope of EU harmonisation, 5 by contrast, the Court departed from that position by engaging substantively with that provision and outlining that the concept of “due cause” must be interpreted consistently under both provisions, even though the outcome may ultimately differ.
Whereas Article 10(2)(c) requires use in the course of trade and in relation to goods or services, Article 10(6) permits Member States to provide or maintain broader national protection for reputed trademarks against use for purposes other than distinguishing goods or services. The Benelux legislature has expressly given effect to this additional protection through Article 2.20(2)(d) of the Benelux Convention 6, which entitles the proprietor to prevent such use where, without due cause, it takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trademark. Accordingly, even if the IKEA marks were found not to have been used in the course of trade and in relation to goods or services, the use could still be examined, in respect of the Benelux marks, under this additional national protection.
The position under Maltese law is less clear. Article 12(9) of the Maltese Trademarks Act reflects the language of Article 10(6) of the Directive by providing that the ordinary infringement provisions do not affect protection available “under any law” against use of a sign for purposes other than distinguishing goods or services. Unlike Article 2.20(2)(d) of the Benelux Convention, however, Article 12(9) does not itself expressly confer on the proprietor a right to prevent such use. Rather, it appears to operate as a saving provision, preserving any protection which may otherwise be available under Maltese law. Its practical scope is therefore uncertain in the absence of a separate substantive basis under Maltese law providing the broader protection contemplated by Article 10(6). The provision could theoretically encompass general tortious liability under the Maltese Civil Code, such as in circumstances where the unauthorised use of a reputed mark outside a commercial context nonetheless causes reputational harm to the proprietor. However, whether Maltese courts would entertain and recognise such a claim within the trademark context is altogether untested.
The contrast with the Benelux provision illustrates the significance of Article 10(6) as an optional form of additional protection whose practical effect ultimately depends on the manner in which it has been given effect at national level.
Importantly, the Court held that concepts such as “due cause” must be interpreted consistently under Articles 10(2)(c) and 10(6), meaning that the same fundamental rights balancing framework applies. However, the outcome of that exercise “need not necessarily be the same”. Where use falling within Article 10(6) occurs outside the commercial sphere, freedom of expression may benefit from broader protection than strictly commercial expression. This does not create an automatic exception for non-commercial or political use. Rather, the commercial or non-commercial context of the expression affects the weight afforded to freedom of expression in the balancing exercise.
The Court cited Perinçek v Switzerland (ECtHR, 2015) for the proposition that balancing conflicting fundamental rights requires an assessment of the “comparative importance of the concrete aspects of those rights, the need to restrict, or to protect, each of them, and the proportionality between the means used and the aim sought to be achieved“. This ECtHR methodology therefore underpins the entire balancing framework which should be conducted.
Applying these principles to IKEA-PLAN, the Court acknowledged that immigration and asylum policy constitutes a matter of public interest and therefore engages strongly protected political expression. Nevertheless, there was no apparent connection between IKEA and that debate. The political message did not concern IKEA, its commercial practices, goods or services, and the use of the marks appeared instead to merely take advantage and ride on the coattails of its substantial reputation in order to reinforce the political message and increase its dissemination. Nor did the use appear necessary because of any independent linguistic meaning or cultural significance attached to the IKEA marks.
Inter IKEA Systems v Vlaams Belang therefore confirms that EU trademark law does not recognise a broad safe harbour for political parody or political expression. Freedom of expression is not, by itself and in the abstract, a defence to the use of a reputed trademark. Instead, the CJEU has adopted a case-by-case balancing approach in which the third party must demonstrate why the use of the particular trademark is justified as part of the exercise of its freedom of expression. Political speech, parody and matters of public interest may carry substantial weight, particularly outside the commercial sphere, but they do not confer any power on third parties to appropriate the attraction and reputation of a reputed trademark merely to amplify an otherwise unrelated message.
Footnotes
1. Brussels Business Court, Dutch Speaking
2. Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark
3. Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (recast)
4. The European Convention for the Protection of Human Rights and Fundamental Freedoms
5. OPINION OF ADVOCATE GENERAL SZPUNAR delivered on 13 November 2025, points 44–45
6. Benelux Convention on Intellectual Property (BCIP)
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