When can freedom of expression justify the use of a well-known trade mark?
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A recent CJEU judgment provides further guidance on how the rights of trade mark owners must be balanced against freedom of expression.
In C-298/23, a Belgian political party used IKEA’s reputed trade marks and visual references in a campaign on asylum and immigration policy. The party argued that its use was justified by freedom of expression.
What the CJEU clarified
Under EU trade mark law, the proprietor of a trade mark with a reputation can oppose certain uses of an identical or similar sign unless there is “due cause”.
The CJEU has now clarified that freedom of expression can form part of the assessment of due cause – but relying on it is not enough in itself.
“From a trade mark perspective, the most interesting aspect of the judgment is the way the Court frames freedom of expression within the “due cause” assessment.”
A question of balance
A third party relying on freedom of expression must identify the specific reasons justifying its use of the mark and demonstrate why, in the circumstances, those reasons should prevail over the rights and interests of the trade mark proprietor.
The national court must then carry out a genuine balancing exercise. Neither the right to property nor freedom of expression is absolute.
Importantly, the CJEU observed that the use of IKEA’s reputed marks may cause significant detriment to the marks’ reputation and to their proprietor’s interests. In those circumstances, using the marks solely to benefit from their reputation in order to reinforce a political message and increase its dissemination does not appear to take precedence over the proprietor’s rights and interests. Whether that is ultimately the case remains for the referring court to determine.
For brand owners, the implications potentially go beyond political campaigns. Similar questions can arise whenever famous brands are appropriated in advocacy, parody, social commentary or other expressive contexts.
The judgment does not create an automatic victory for either side. Instead, it confirms something more nuanced: reputation gives trade marks broader protection, but that protection operates within, not outside, the EU fundamental-rights framework.
Luisa Grillo's comment
From a trade mark perspective, the most interesting aspect of the judgment is the way the Court frames freedom of expression within the “due cause” assessment. Freedom of expression does not operate as a stand-alone defence to the use of a reputed mark, but rather as one of the interests to be weighed against the proprietor’s exclusive rights.
The judgment therefore confirms that “due cause” remains a highly fact-sensitive concept: the specific context and manner of use, the expressive purpose pursued and the potential harm to the reputation of the mark all need to be considered as part of the balancing exercise.
Image
François Genon via Unsplash
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