Can Freedom of Expression Justify the Use of a Trademark?

What happens when a trademark becomes so recognizable that it can be used to communicate a message beyond the goods or services for which it is registered?

The recent judgment of the Court of Justice of the European Union (“CJEU”) in Inter IKEA Systems BV v Vlaams Belang provides an interesting perspective. The case concerned the use of IKEA’s well-known trademarks in a political campaign and examined the balance between trademark protection and freedom of expression.

1. When a Trademark Becomes a Cultural Reference

In 2022, the Belgian political party Vlaams Belang launched a campaign concerning immigration and asylum policy under the name “IKEA-PLAN – Immigratie Kan Echt Anders” (“IKEA-Plan – Immigration Can Really Be Different”). The campaign deliberately incorporated IKEA’s trademarks and distinctive visual identity, including its blue-and-yellow color scheme, typography and IKEA-style assembly-manual imagery.

IKEA brought trademark infringement proceedings, arguing that its trademarks had been used without authorization. The party, however, relied on freedom of expression and argued that the use of IKEA’s trademarks was part of its political message. The case was then referred to the CJEU, which was asked to consider whether political expression or parody could constitute “due cause” for the unauthorized use of a well-known trademark.

2. Freedom of Expression Is Not a Blanket Defense

The CJEU confirmed that freedom of expression, including political opinion and parody, may in principle constitute a legitimate justification for the use of a well-known trademark. However, such a justification is not automatic.

The trademark owner must first establish infringement, or at least a serious risk of infringement. The third party must then demonstrate that, in specific circumstances, its interest in freedom of expression outweighs the trademark owner’s rights.

In carrying out this balancing exercise, the CJEU identified several relevant factors, including:

• whether the use was genuinely motivated by freedom of expression and made in good faith;
• whether there was a genuine connection between the trademark and the message being communicated;
• the nature of the public interest involved;
• the intensity, scale and manner of the use and the degree of similarity; and
• whether the use could create the impression that the trademark owner endorsed the message.

3. Why the IKEA Case Matters

In the IKEA case, the CJEU noted that the campaign did not use the IKEA trademarks to comment on IKEA, its products or its business practices. Instead, the campaign sought to benefit from the reputation of the IKEA trademarks in order to amplify a political message concerning an unrelated subject.

The CJEU also considered the strong similarity between the campaign materials and IKEA’s trademarks, their repeated use and their dissemination online to a potentially unlimited audience. It further noted the possibility that the public could perceive IKEA as endorsing the political message.

Based on these considerations, the CJEU found that the interest in political expression did not take precedence over IKEA’s rights and interests. The referring court will make the final assessment based on the CJEU’s guidance.

Importantly, the CJEU’s judgment is a preliminary ruling and does not finally decide the underlying dispute. The CJEU has completed its part of the case, and the matter will now return to the Belgian court, which must apply the CJEU’s interpretation when making its final decision.

4. A Broader Question for Trademark Owners

Although the dispute arose in a political context, the underlying question extends beyond political campaigns.

Well-known trademarks may be used in contexts where the trademark is not being used to distinguish goods or services, but rather to communicate a message or attract attention. This raises an increasingly relevant question for trademark owners: when does legitimate reference to a trademark become an unauthorized exploitation of its reputation?

The IKEA judgment suggests that the answer depends heavily on the circumstances of each case. A reference that genuinely comments on the trademark, its owner or its products may have a stronger claim to protection as an expression of opinion. By contrast, where a trademark is used primarily because of its reputation to strengthen an unrelated message, the justification may be considerably weaker.

For trademark owners, the decision therefore highlights the importance of considering not only conventional infringing uses, but also the context and purpose behind an unauthorized use of a well-known trademark.

Conclusion

As trademarks become increasingly recognizable, they may acquire a role beyond simply identifying the commercial origin of goods or services. The IKEA judgment illustrates the challenges that may arise when a well-known trademark is used as part of a broader message rather than for commercial identification.

The judgment does not mean that freedom of expression can never justify the unauthorized use of a trademark. Rather, it shows that freedom of expression must be balanced against the rights and interests of the trademark owner, and that simply relying on freedom of expression will not, by itself, constitute “due cause”.

For trademark owners, the decision highlights the importance of looking not only at whether a trademark has been used, but also at why it has been used, how it has been used and what effect that use may have. The IKEA case therefore provides a useful example of how well-known trademarks can raise new questions at the intersection of trademark protection and freedom of expression.