Awaiting the CJEU’s judgment in IKEA (C-298/23): trade mark rights vs freedom of expression

One of the most anticipated rulings of the CJEU in trade mark law this year is the one in the IKEA case (C-298/23), which concerns the widely discussed conflict between trade mark rights and freedom of expression. See on this point also the previous article in this blog by Elena Izyumenko (here).

Following a referral from a Belgian court, Advocate General Szpunar delivered his opinion in November 2025, proposing that, when considering whether a reputed mark is protected against third-party use, due cause may serve as a mechanism for ensuring the protection of freedom of expression. By contrast, I have argued against taking freedom of expression into account in the interpretation of due cause, on the ground that the balance between trade mark rights and freedom of expression is already reflected in the general conditions for trade mark infringement. I was honoured to note that the AG referred to one of my papers on this topic (here).

To some extent, the AG’s opinion supports that view, by emphasising that the contested sign must be used in the course of trade and in relation to goods or services. As the AG observes, these conditions are relevant when striking a balance between the rights conferred by a trade mark and freedom of expression. Where the sign is not used in the course of trade or in relation to goods or services, no conflict arises between trade mark rights and freedom of expression (para 36).

The AG emphasises that the contested sign must be linked to goods or services of a person other than the proprietor. It follows that, where a sign is used exclusively in connection with the goods or services of the proprietor, the latter cannot object to such use under trade mark law (para 71). Accordingly, no restriction on freedom of expression arises where a person seeks to criticise the proprietor by referring to its trade mark.

The condition of use as a trade mark requires that the contested sign be used in relation to clearly identifiable goods or services. In a case such as the present one, which concerns the use of the IKEA mark by a political party, classification as trade mark use presupposes that the sign relates to goods or services, rather than merely to a political programme (paras 74–76).

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As emphasised by the AG, intellectual property rights constitute fundamental rights that are equal in status to freedom of expression (paras 90–92). The general conditions of infringement, which delimit the scope of trade mark protection, are precisely intended to strike a balance between the fundamental right to property and the fundamental freedom of expression.

The AG considers, however, that freedom of expression may be invoked on the basis of due cause. This solution is likely to create a risk of unduly limiting trade mark rights in situations involving purely commercial uses pursued in private interests. Admittedly, there may be instances in which expression-related messages arise in the course of trade and qualify as trade mark use. Such use may, in addition to its commercial nature, be parodic or humorous. However, in such circumstances, it is difficult to see why the defendant’s use should be regarded as lawful. A third party should not be able to rely on a purported humorous intention in order to avoid liability. The parodic effect as such cannot constitute a valid criterion for legitimising the unauthorised commercial use of a trade mark.

Thus, introducing freedom of expression as a justification for due cause appears, on the one hand, unnecessary and, on the other, potentially dangerous. It would therefore be advisable for the CJEU to rule this out. Nevertheless, it seems more likely that the Court will follow the interpretation suggested by the AG. Hopefully, the CJEU will also emphasise the two preconditions for trade mark infringement, hence make clear that the scope of the due cause exception is narrow, and clarify that uses of trade marks in the exercise of freedom of expression but motivated by private commercial interests, in the context of marketing goods or services under a reputed mark, should, in principle, receive no special treatment and constitute trade mark infringement.