The delicate balance between freedom of expression and the rights of the trademark proprietor: the Inter IKEA Systems case
16 Oct 2026
Court of Justice of the European Union, C-298/23, 8 September 2026
The judgment provides significant clarification regarding the criteria on which a national court must base its assessment when called upon to strike a balance between freedom of expression and intellectual property rights.
The ruling originates from an infringement case between Inter IKEA Systems – the well-known Swedish multinational – and Vlaams Belang – a Belgian far-right political party – which arose following the latter’s use, as part of its election campaign, of trademarks and graphics belonging to IKEA, without consent.
The “due cause” referred to in Article 9(2)(c) of Regulation (EU) No 2017/1001 (EUTMR) – as well as in Article 10(2)(c) of Directive (EU) No 2015/2436 – in the presence of which the proprietor’s right to prohibit third-party use of a well-known trademark is limited – is not, in fact, further specified in European legislation, with the sources referred to above merely stating the need to ensure full respect for freedom of expression and fundamental rights.
The Court, citing numerous precedents from its own case law and that of the European Court of Human Rights (ECHR), in identifying these “due causes”, therefore gave particular importance to: the consistency of the message conveyed in relation to the trademark and its proprietor; the effective contribution of such use to public debate; the consequences of such use for the proprietor, which must never be disproportionately detrimental to him. Furthermore: the intensity, scope and manner of the use, as well as – above all – the impression created in the public that the trademark proprietor endorses the messages promoted.
In identifying these criteria, however, the judges referred in their reasoning solely to “commercial uses” of the trademark with a reputation. Only in the concluding part of the judgment, concerning “non-commercial” uses (Article 10(6) of Directive (EU) No 2015/2436), the Court emphasised that the balance between freedom of expression and the rights of the proprietor is particularly delicate. From this – while also applying the general criteria to such uses – arises the need, according to the judges, to afford broader protection to freedom of expression.
The Court notes, however, that neither intellectual property rights nor freedom of expression are absolute. The national court – where, as in the present case, messages of a political nature are at issue – must therefore balance the conflicting interests, assessing in particular whether the use of the well-known sign poses a risk to the proprietor that the public might perceive support for or endorsement of the political cause (particularly where the proprietor instead promotes opposing values or, in any event, a neutral position), and how intense and pervasive the spread of the political message is, while assessing the actual damage caused to the reputation and distinctive character of the trademark.
While, on the one hand, the CJEU’s attempt to bring greater clarity regarding the actual scope of the “due cause” within which the use of another party’s well-known trademark is permitted is to be welcomed, the Court does not appear to have entirely removed the doubts that justified the national court’s referral.
In the present case, however, the criteria identified by the CJEU suggests that merely exploiting the appeal and reputation of a sign to give maximum visibility to political messages unrelated to the proprietor is unlikely to justify the infringement of the trademark, and may rather risks causing serious and disproportionate detriment to the proprietor’s reputation.
Giovanni Volpi
