Freedom of expression as due cause: the IKEA judgment is reassuring for trade marks proprietors

On 8 September 2026, the Court of Justice delivered its long-awaited judgment in the IKEA case (C-298/23). See on this case the previous articles in this blog (here and here).

The question was whether the use of a trade mark within freedom of expression may constitute due cause under the enhanced protection afforded to trade marks with a reputation. The dispute arose from an infringement action brought by IKEA against a Belgian political party that used IKEA’s name, logo and colours in its campaign.

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The Court held that the use of a trade mark in the exercise of freedom of expression may constitute due cause, provided that this freedom is found to prevail over the trade mark right. The Court provided a non-exhaustive list of factors to be considered in the assessment. The factors identified by the judgment, in a highly casuistic way, may be summarised as follows: (i) whether the expression in question contributes to a public interest debate or it occurs in a strictly commercial context; (ii) whether it is necessary for other reasons; (iii) in case of use made in a political context, what are the consequences for the proprietor, and whether it can give the impression that the proprietor agrees with the political message conveyed.

The general rule emerging from the judgment, namely that the use of a sign in the exercise of freedom of expression may, in certain circumstances, constitute due cause, is not surprising. It was expected that the Court would acknowledge this principle, given the importance of freedom of expression in the legal system. Having said that, both the reasoning of the judgment and its operative part are reassuring for trade mark proprietors and should not affect the application of the provisions relating to the enhanced protection of trade marks with a reputation.

Regarding the use of a trade mark in a political context, the fact that the Court invites the national court to assess whether such use may give the impression that the proprietor endorses the political message conveyed strengthens the proprietor’s position when opposing uses of its reputed marks when their reputation is exploited to promote a political message unrelated to its business or values. That said, under harmonised EU law, as emphasised by the Court, the trade mark right entitles the proprietor to oppose only the uses made in the course of trade and in relation to goods or services. Therefore, where a sign is not used to distinguish the commercial origin of goods or services, no infringement can arise, unless, as is the case under Benelux law, the national legislation extends trade mark protection to situations that do not constitute trade mark use.

The scope of the judgment is not limited to use in a political context. Precisely for that reason, prior to the ruling, one might have been concerned that recognising freedom of expression as due cause could open the door to infringers seeking to justify the use of signs as designations of goods for purely commercial purposes, particularly where such use was intended to be humorous. The case discussed here provides a useful illustration of that concern.

Fortunately, the judgment does not allow infringers to rely on due cause as a defence in such circumstances. Indeed, as might have been expected, the Court emphasises that use justified by freedom of expression must not occur in a strictly commercial context but must contribute to a debate of public interest. Where the use is not made in the public interest, the Court refers to the criterion of necessity. This means that the conditions for invoking freedom of expression are stringent and that the use of another party’s trade mark to pursue private interests in a commercial context cannot be justified on that basis.

Therefore, the judgment largely confirms the strong protection afforded to reputed marks against unlawful use in the course of trade to designate goods or services. It does not allow those rights to be weakened by parties seeking to invoke freedom of expression as a justification for exploiting, for their own commercial benefit, the reputation attached to a third party’s trade mark.