Trade marks meet political speech in the IKEA judgement
In its recent judgement in Inter IKEA Systems BV v Vlaams Belang (C-298/23), the CJUE examined whether freedom of expression can justify the unauthorised use of a well-known trade mark in a political campaign.
The Vlaams Belang, a Belgian political party, launched its ‘IKEA-Plan’ on immigration policy. This plan incorporated signs, colours and visual elements associated with IKEA's brand identity. While the Vlaams Belang argued that its use of the marks formed part of protected political expression, IKEA claimed that its trade mark rights had been infringed.
𝗙𝗿𝗲𝗲𝗱𝗼𝗺 𝗼𝗳 𝗲𝘅𝗽𝗿𝗲𝘀𝘀𝗶𝗼𝗻 𝗱𝗼𝗲𝘀 𝗻𝗼𝘁 𝗮𝘂𝘁𝗼𝗺𝗮𝘁𝗶𝗰𝗮𝗹𝗹𝘆 𝗽𝗿𝗲𝘃𝗮𝗶𝗹
First, the Court confirms that freedom of expression can, in principle, constitute a legal defense (a ‘due cause’) allowing the use of a third party’s trade mark.
Then, the CJEU firmly rejects that merely invoking freedom of expression automatically shields a party from liability. The party relying on that freedom must demonstrate why, in the specific circumstances of the case, its expressive interests outweigh the trade mark owner's exclusive rights.
𝗧𝗵𝗲 𝗯𝗮𝗹𝗮𝗻𝗰𝗶𝗻𝗴 𝗲𝘅𝗲𝗿𝗰𝗶𝘀𝗲
Valuable guidance on how courts should balance the fundamental right to freedom of expression against the right to intellectual property is provided.
The Court identifies various factors, including:
• the intention behind the use of the trade mark (whether that use was done in good faith);
• whether the use contributes to a debate of public interest;
• the intensity, scale and manner of the use;
• the reputation of the trade mark;
• the degree of similarity between the sign used and the protected mark; and
• whether the use may create the impression that the trade mark owner endorses, supports or is associated with the political message being conveyed.
𝗔 𝘀𝘁𝗿𝗼𝗻𝗴 𝘀𝗶𝗴𝗻𝗮𝗹 𝗮𝗴𝗮𝗶𝗻𝘀𝘁 𝗯𝗿𝗮𝗻𝗱 𝗳𝗿𝗲𝗲-𝗿𝗶𝗱𝗶𝗻𝗴
The CJUE makes clear that freedom of expression cannot be relied upon to appropriate the reputation of a well-known brand in order to increase the visibility of an unrelated political message.
𝗪𝗵𝘆 𝗱𝗼𝗲𝘀 𝗶𝘁 𝗺𝗮𝘁𝘁𝗲𝗿?
- For trade mark owners: the judgement confirms the importance of protecting brand reputation, notably where there is a risk of unwanted association with a political campaign or strong ideological views.
- For organisations, activists and political actors: this is an important reminder that freedom of expression and parody are not unlimited defenses in trade mark disputes. Courts will assess whether the use genuinely serves an expressive purpose or merely seeks to benefit from the reputation of a well-known mark.
At Pierstone, we will continue to follow the developments at the intersection of IP and fundamental rights.
This news is not a legal advice or a legal opinion. You should seek advice from a legal counsel of your choice before acting upon any of the information in this news.