A recent judgment of the Court of Justice of the European Union (September 8th, 2026, Case C‑298/23) had to balance two conflicting fundamental rights: the right to intellectual property, guaranteed to the proprietor of a notorious trade mark under Article 17(2) of the Charter of Fundamental Rights of the European Union, and freedom of expression, guaranteed by Article 11 of the same Charter.
The facts
In November 2022, at a press conference broadcasted on social media, the Belgian political party Vlaams Belang presented a proposal regarding the reform of asylum and immigration policy entitled “IKEA-PLAN – Immigratie Kan Echt Anders” (“Immigration really can be done differently”). The proposals were accompanied by illustrations featuring signs corresponding to IKEA trademarks and characters resembling those found in the company’s product assembly instructions.
Inter IKEA, the proprietor of the trademarks, brought infringement proceedings against Vrijheidsfonds, the association responsible for carrying out the campaign on behalf of the party. The association acknowledged the unauthorised use of the trademarks but argued that it had leveraged their trademark’s reputation to strengthen its message and that this use constituted “due cause” under EU law, in protection of freedom of expression and political parody. The Belgian court, identifying a conflict between two fundamental rights of equal standing stayed the proceedings and referred the matter to the Court of Justice of the European Union (CJEU).
The legal framework
The central provisions are Article 9(2)(c) of Reg. (EU) 2017/1001 for EU trademarks, and Article 10(2)(c) and (6) of Directive (EU) 2015/2436, for national trademarks. In Italy, the corresponding provision is Article 20(1)(c) of Legislative Decree No. 30, February 10th, 2005 (the Industrial Property Code, or CPI). These provisions allow the proprietor of a reputed trademark to prohibit the use of an identical or similar sign, including in relation to dissimilar goods or services, where, without due cause, that use takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trademark. Article 10(6) of the Directive also allows Member States to extend protection to use of a sign for purposes other than distinguishing goods or services.
The referring court asked the CJEU whether freedom of expression, including political parody, may constitute “due cause” and, if so, which criteria the national court should take into account when assessing the balance between those two fundamental rights, and what weight should be attributed to each criteria (1)”.
Therefore, the main issue lies in the concept of “due cause”. The Court observed that EU trademark legislation does not define that concept and that it must therefore be interpreted in the light of the general scheme and objectives of the system of which it forms part (2).
The link with fundamental rights is provided, firstly, by recital 21 of the Reg. and by recital 27 of the Directive, both of which clarify how exclusive rights do not permit the prohibition of uses that comply with honest practices, including artistic expression, and the legislation must be applied “in a manner that ensures full respect for fundamental rights and freedoms, in particular freedom of expression (3)”.
Judicial déjà vu
Interestingly enough, in 2014, over a copyright case, the Belgian court had referred a question to the CJEU concerning parody, curiously involving the same association, Vrijheidsfonds (Deckmyn and Vrijheidsfonds, C‑201/13). The Court classified parody as an autonomous concept of EU law. Its essential characteristics were identified as something that evokes an existing work while being noticeably different from it and expresses humour or mockery. The application of this rule must nevertheless strike a fair balance between the rights and interests of right holders, who have a legitimate interest in ensuring that their work is not associated with a discriminatory message.
Trademark law, however, contains no specific parody exception. The European Parliament’s proposal to introduce such an exception for parodic use as part of the 2015 reform was not adopted, parody is therefore relevant only through the general “due cause” clause.
The Court’s decision
The Court recalls that intellectual property rights are not absolute and that due cause may also be linked to the third party’s own interests (Leidseplein Beheer and de Vries, C‑65/12, the Red Bull/“The Bulldog” case). In light of the recitals mentioned above, freedom of expression may therefore, in principle, constitute due cause.
However, this does not mean that merely invoking freedom of expression is sufficient. According to the Court, a person using a sign identical or similar to a notorious trademark must explain the specific reasons for that use, connected with the exercise of their freedom of expression, and demonstrate that those reasons outweigh the rights and interests of the trademark proprietor.
In regards the burden of proof, the proprietor must first demonstrate the prejudice or unfair advantage (or a serious risk that either will occur); only then does the burden shift to the third party to prove due cause (paragraphs 56–59).
The Court also distinguishes between use “in the course of trade in relation to goods or services” and use for purposes other than distinguishing goods or services (Article 10(6) of the Directive). A political programme is not, in itself, a product or service, although merchandise or online promotional content may be. The distinction matters because expression outside the commercial sphere may enjoy broader protection and the balancing exercise may produce a different outcome (paragraphs 53 and 107–108).
As in copyright law, it is for the national court to balance the competing interests, bearing in mind that neither right is absolute and assessing “the need to restrict or protect each of them, and the proportionality between the means employed and the objective pursued (4)”. In particular, the court must examine:
the intention of the person using the sign identical or similar to the reputed trademark, whose aim must not be to damage the trademark or simply ride its reputation;
good faith: the use must be driven by the aim of exercising freedom of expression. Good faith may be established where use of the reputed trade mark serves to convey an idea or an opinion concerning the mark itself, its proprietor, or its goods and services;
contributes to a debate of public interest; or is necessary for the exercise of freedom of expression for other reasons, such as the linguistic meaning of an element of the sign or its having become a cultural reference or part of common language;
whether the use is commercial or non-commercial;
when and how the trade mark was used, including the intensity, scope and manner of use; the reputation of the mark; the degree of similarity; and the risk that the public may perceive the proprietor as endorsing the political message, particularly where the proprietor’s values are based on political neutrality;
le conseguenze per il titolare: se il giusto motivo sussiste, deve tollerare un certo pregiudizio, ma non uno sproporzionato o tale da svuotare il suo diritto esclusivo.
the consequences of the use for the proprietor. Even where due cause exists, the proprietor may have to tolerate some harm, but not harm that is disproportionate or that deprives the exclusive right of its substance.
Application to the specific case
The Court’s guidance to the referring court is clear. “IKEA” is an acronym with no semantic meaning and has not become part of common language; although the debate on immigration is a matter of public interest, it has no connection with IKEA; the signs also reproduced the trademark’s typography and colours, and were used repeatedly and widely online; and the public could perceive IKEA, which asserts its political neutrality, as endorsing the message (paragraphs 94–99).
It follows that use of the IKEA trademarks may cause significant prejudice to their trademarks. Nor does it appear that use intended solely to amplify a political message by exploiting the trademarks’ reputation outweighs those interests. The final assessment nevertheless remains for the referring court (paragraphs 100–101).
Concluding thoughts on proper assembly
In the vast catalogue of fundamental rights, freedom of expression and intellectual property are two sides of the same coin (or of the same door): neither is worth more than the other, and neither prevails a priori; but if they are assembled incorrectly, the door comes off in your hands.
The judgment takes on a pragmatic approach. On one hand, it recognises that political parody is not alien to trademark law; on the other, it limits its reach, ruling out freedom of expression as a general justification.
For proprietors of notorious trademarks, the decision provides a useful criterion for assessing responses to unauthorised uses in political or social campaigns, with particular attention to the risk of ideological association. For those communicating a message, the need to give concrete reasons for using the sign becomes a factor to consider at the campaign-design stage.
In any event, as with any assembly kit, the final word belongs to the person holding the screwdriver: the Belgian judge.
Sources
(1): Court of Justice of the European Union, Grand Chamber, September 8, 2026, Case C‑298/23, paragraph 28. For a first comment, see “Reputed trade marks and political parody: the Court of Justice rules on the IKEA case, defining the limits of freedom of expression in the face of intellectual property protection”, Sistema Proprietà Intellettuale, Trade Marks section, article no. 39571, 11 September 2026, sistemaproprietaintellettuale.it.
(2): Court of Justice of the European Union, Grand Chamber, September 8, 2026, Case C‑298/23, paragraph 60.
(3): Recital 27 of Directive (EU) 2015/2436, cited at paragraph 69 of the judgment of the Court of Justice of the European Union, Grand Chamber, September 8, 2026, Case C‑298/23, together with recital 21 of Regulation (EU) 2017/1001.
(4): Court of Justice of the European Union, Grand Chamber, September 8, 2026, Case C‑298/23, paragraph 82, referring to ECtHR, 15 October 2015, Perinçek v. Switzerland, § 228.
