Freedom of Speech
and
trademarks.
Freedom of Speech
and
trademarks.
of
Can a political campaign use the image of a world-famous trademark to attract more attention? The European Court of Justice has ruled for the first time on how trademark protection and freedom of expression should be balanced against one another. According to the ruling, one thing is clear: merely invoking freedom of expression is not sufficient.
IKEA Furniture for Asylum Policy
On November 14, 2022, the Belgian party Vlaams Belang presented its program “IKEA-PLAN – Immigratie Kan Echt Anders.” It called for a reform of Belgian asylum and immigration policy. The campaign was carried out by the Vrijheidsfonds, an association acting in the name and on behalf of the party.
Fifteen policy proposals were described as “ready to assemble.” The accompanying illustrations were in the style of IKEA’s trademarks. Figures from the furniture assembly instructions also appeared. The speaker explained that the title did not mean “Ingvar Kamprad Elmtaryd and Agunnaryd”—the actual meaning of the acronym IKEA. The campaign was also shared on social media.
Inter IKEA Systems BV is the owner of the IKEA EU trademark and several Benelux trademarks. The company sued several parties in a Brussels court for infringement of its trademark rights. However, the court ruled that the lawsuit was admissible only against the Vrijheidsfonds.
Does freedom of speech justify the use of trademarks?
The Vrijheidsfonds admitted to using the IKEA trademarks without permission. However, it argued that it had specifically exploited the trademarks’ name recognition to lend more weight to its political message. It contended that this constituted a “justifiable reason” protected by freedom of speech, including political parody.
The Brussels court viewed this as a conflict between two fundamental rights of equal standing. On the one hand, there is the trademark owner’s right to property; on the other, the third party’s freedom of expression. The court referred this question to the ECJ.
ECJ: Freedom of expression may constitute a justifying ground
The Grand Chamber of the European Court of Justice ruled in its judgment of September 8, 2026—Case C-298/23 . According to the ruling, freedom of expression, including political expression and political parody, may in principle constitute a justifying ground under EU trademark law. However, this is subject to the condition that, upon balancing the interests involved, this freedom outweighs the trademark owner’s exclusive right.
Why is merely invoking freedom of expression not sufficient?
The Court emphasizes: A third party’s mere invocation of its right to freedom of expression is not sufficient.
A third party who uses a sign that is identical or similar to a well-known trademark must set forth the specific reasons for such use. These reasons must be related to the exercise of that party’s freedom of expression. In addition, the third party must demonstrate that these reasons outweigh the rights and interests of the trademark owner.
In weighing the factors, the third party’s intent is the primary consideration. Is there a substantive connection to the trademark? Does the statement contribute to a debate of general interest? Other factors include the extent of the use and its consequences for the trademark owner. These include the trademark’s reputation, the degree of similarity between the signs, and the impression that the use supports the message being conveyed.
In this specific case, the Court found substantial evidence against the Vrijheidsfonds. The marks used were highly similar to—or identical with—the IKEA trademarks. Their use was repeated and disseminated virtually without limit via the Internet. Furthermore, the asylum and immigration debate itself has no substantive connection to the IKEA trademarks. It therefore does not appear that the interests of the Vrijheidsfonds outweigh IKEA’s rights. The final decision, however, rests with the court in Brussels.
What does this mean for businesses?
For trademark owners, the decision reaffirms an important principle: they can also take action against political or critical use of their well-known trademarks. This applies, in any case, when the use clearly exploits only the trademark’s ability to attract attention without establishing any substantive connection to it.
- For trademark owners:
Document unauthorized uses of your trademark as early as possible. Have a professional assess whether a cease and desist letter is likely to be successful. - For Advertisers and Campaign Organizers:
Anyone wishing to invoke freedom of speech should first establish a contextual connection to the third-party trademark. Alternatively, there must be a genuine contribution to a debate of general interest. Seeking trademark advice in advance reduces the risk of a subsequent injunctive relief action.
Conclusion
The ECJ has ruled that freedom of expression may, in principle, serve as a justifying ground under EU trademark law. At the same time, the ECJ draws a clear line. Anyone seeking to invoke this right must provide more than a mere reference to their fundamental right.
In the case of the Vrijheidsfonds, the Court of Justice has already hinted at the outcome without definitively determining it. The Brussels court will have the final say.
In practice, this means one thing above all else: For advertising and communication campaigns that reference well-known third-party trademarks, a thorough review before the campaign launches is essential.
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