Opinion of the Advocate General — ECLI:EU:C:2025:886
Date: 2025-11-13
Language of the case: Dutch

Summary C-298/23 – 1 
Case C-298/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
8 May 2023 
Referring court:  
Nederlandstalige Ondernemingsrechtbank Brussel (Belgium) 
Date of the decision to refer:  
4 May 2023 
Applicant:  
Inter IKEA Systems BV 
Defendants:  
1. Algemeen Vlaams Belang vzw, first defendant 
2. S, T, U and V, in their capacity as representatives of all the 
members of the de facto association known as ‘Vlaams Belang’ or 
‘Vrijheidspartij’, second defendant 
3. Vrijheidsfonds vzw, third defendant 
  
Subject matter of the main proceedings 
Action brought by writ of summons of 22 November 2022 by the applicant, before 
the Nederlandstalige Ondernemingsrechtbank Brussel (Dutch Enterprise Court, 
Brussels, Belgium) seeking (1) a declaration in law that the defendants, by using 
the sign IKEA in their material, are unlawfully infringing the applicant’s trade 
mark rights, (2) an order that the defendants cease using the IKEA trademarks 
and/or the IKEA house style, on pain of a penalty payment, (3) publication of the 
judgment to be handed down in the Dutch-language and French-language press, 
on the applicant’s website and on the defendants’ websites, and (4) destruction of 
the material used, all this with damages. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-298/23 
 
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Subject matter and legal basis of the request 
Interpretation of the concept of ‘due cause’ within the meaning of Article 9(2)(c) 
of Regulation (EU) 2017/1001 on the European Union trade mark and 
Article 10(2)(c) and Article 10(6) of Directive (EU) 2015/2436 to approximate the 
laws of the Member States relating to trade marks, and weighing the trade mark 
right against the fundamental right of freedom of (political) expression, including 
the use of political parody; Article 267 TFEU. 
Questions referred for a preliminary ruling 
Can freedom of expression, including the freedom to express political opinions 
and political parody, as guaranteed by Article 10 of the European Convention for 
the Protection of Human Rights and Fundamental Freedoms and Article 11 of the 
Charter of Fundamental Rights of the European Union, constitute ‘due cause’ for 
using a sign identical or similar to a well-known trade mark within the meaning of 
Article 9(2)(c) of Regulation (EU) 2017/1001 of the European Parliament and of 
the Council of 14 June 2017 on the European Union trade mark as well as 
Article 10(2)(c) and Article 10(6) of Directive (EU) 2015/2436 of the European 
Parliament and of the Council of 16 December 2015 to approximate the laws of 
the Member States relating to trade marks? 
If so, what are the criteria to be taken into account by the national court in 
assessing the balance between those fundamental rights, and the importance to be 
attached to each of them? 
In particular, can the national court take into account the following criteria, and/or 
are there additional criteria: 
o the extent to which the expression has a commercial character or 
purpose; 
o the extent to which competitive motives are at play between parties; 
o the extent to which the expression has a public interest, is socially 
relevant or opens a debate; 
o the relationship between the above criteria; 
o the degree of reputation of the trade mark invoked; 
o the extent of the infringing use, its intensity and systematic nature and 
the extent of its distribution, by territory, time and volume, also taking 
into account the extent to which this is proportionate to the message 
that the expression is intended to convey; 
o the extent to which the expression, and circumstances accompanying 
that expression, such as the name of the expression and its promotion, 
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are detrimental to the reputation, distinctive character and image of the 
trade marks invoked (the ‘advertising function’); 
o the extent to which the expression exhibits its own original 
contribution and the extent to which an attempt has been made to avoid 
confusion or association with the trade marks invoked, or the 
impression that there is a commercial or other connection between the 
expression and the trade mark proprietor (the ‘origin function’), also 
taking into account the manner in which the trade mark proprietor has 
built up a certain image and reputation in advertising and 
communication? 
Provisions of international law and case-law relied on 
Article 10 ECHR 
Benelux Convention on Intellectual Property (‘the BCIP’): Article 2.20.2.c) and d) 
The Paris Convention of 20 March 1883 for the Protection of Industrial Property: 
Article 10bis(2) 
ECtHR, 1 May 2011, Faruk Temel v. Turkey (§ 55); 14 March 2013, Eon v. 
France (§ 59), and 23 April 1992, Castells v. Spain (§ 43) 
Judgment of the Benelux-Gerechtshof (Benelux Court of Justice) of 14 October 
2019, Damn Pérignon (No A 2018/1/8) 
Provisions of European Union law and case-law relied on 
Regulation (EU) 2017/1001 of the European Parliament and of the Council of 
14 June 2017 on the European Union trade mark: in particular Recital 21 and 
Article 9(2)(c) 
Directive (EU) 2015/2436 of the European Parliament and of the Council of 
16 December 2015 to approximate the laws of the Member States relating to trade 
marks: in particular Recital 27, Article 10(2)(c) and Article 10(6) 
Charter of Fundamental Rights of the European Union (‘the Charter’): Article 11 
Judgment of 12 November 2002, Arsenal Football Club (C-206/01, 
EU:C:2002:651) 
Judgment of 23 March 2010, Google France and Google (C-236/08–C-238/08, 
EU:C:2010:159), and the conclusion in that case (EU:C:2009:569) 
Judgment of 21 October 2010, Padawan (C-467/08, EU:C:2010:620) 
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Judgment of 12 July 2011, L’Oréal and others (C-324/09, EU:C:2011:474) and 
the conclusion in that case (EU:C:2010:757) 
Judgment of 1 December 2011, Painer (C-145/10, EU:C:2011:798) 
Judgment of 6 February 2014, Leidseplein Beheer and De Vries (C-65/12, 
EU:C:2014:49) 
Judgment of 3 September 2014, Deckmyn and Vrijheidsfonds (C-201/13, 
EU:C:2014:2132) 
Judgment of 27 February 2020, Constantin Film Produktion v EUIPO (C-240/18, 
EU:C:2020:118) 
Judgment of 8 December 2022, TU and RE v Google (C-460/20, EU:C:2022:962) 
Provisions of national law relied on 
Article 1382 of the Civil Code 
Article VI.104 of the Economic Law Code 
Succinct presentation of the facts and procedure in the main proceedings 
1. The case concerns the – according to the applicant – unauthorised use of the well-
known IKEA trade marks and IKEA house style by Vrijheidspartij in the political 
campaign of a political party. At issue is the Benelux word mark IKEA, registered 
on 29 January 1971 under number 503696 for goods in Class 20 (furniture); the 
Benelux word mark IKEA, registered on 12 October 1976 under number 615831 
for goods in Classes 11 (lighting, among others), 24 (textiles) and 27 (carpets); the 
semi-figurative Benelux mark,  registered on 27 February 1987 
under number 692230 for a very broad description of goods and services, as well 
as the European Union word mark IKEA, registered on 1 October 1998 for a very 
broad description of goods and services. IKEA is well known among the general 
public for its DIY furniture kits with manuals. IKEA describes itself as ‘one of the 
most well-known brands in the world’, which the third defendant does not dispute. 
2. In the opinion of Vrijheidsfonds, the Swedish coalition agreement could serve as 
inspiration for a necessary reform of asylum and migration policy in Belgium. On 
14 November 2022, the political party Vlaams Belang presented its IKEA plan to 
the press and public. According to the third defendant, the title of the plan, 
‘Immigratie Kan Echt Anders’ [≈ ‘Immigration Really Can Be Different’] 
(abbreviated [in the language of the case] to IKEA), proposes a ‘Swedish 
package’ of migration measures through a playful and parodying reference to the 
IKEA brand. The plan is presented as an IKEA construction kit or manual with 15 
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proposals, by analogy with IKEA’s well-known manuals, so that the Belgian 
government can start working on it immediately, according to the third defendant. 
3. The plan was publicised and disseminated using the following materials:  
(1) a press conference at which S presented the plans as a kit from the Swedish 
furniture giant. The first page of this electronic presentation mentions the 
IKEA plan, in a representation corresponding to the semi-figurative 
representation of the IKEA trade marks and below it the title ‘Immigratie 
Kan Echt Anders’:  
 
 
 
The plan lists the 15 policy points, using (slightly provocative) illustrations 
with figures corresponding to the IKEA character, and the typical 
blue/yellow colour of the Swedish flag and IKEA:  
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(2) During this half-hour press conference, S explained the 15-point plan, in 
which S – given the nature of the (according to the defendant slightly 
humorous, or provocative) use of signs corresponding to the IKEA trade 
marks peculiar to the parody – makes frequent and, according to the third 
defendant, playful references to the Swedish furniture giant or the Swedish 
origin of the plan. The third defendant further argues that this emphasises 
the difference from the activities of the Swedish furniture chain and 
indicates that IKEA is – obviously – in no way involved in, nor does it give 
any support to, the political party’s policy plan. Moreover, S, seated next to 
a European and a Swedish flag, declared, among other things: ‘So here, 
today, as Vlaams Belang, we present our IKEA PLAN. Our IKEA PLAN 
does not stand for Ingvar Kamprad Elmtaryd and Agunnaryd – my Swedish 
is far from perfect – that is what IKEA actually stands for. For us, IKEA 
does not stand for the Swedish manufacturer of handsome furniture; no, for 
us, IKEA stands for: “Immigratie Kan Echt Anders”. […] The [kit] is ready 
to be implemented straight away by this Belgian government. […] It is 
interesting that there are policies […] in Sweden and that they fall within 
the framework of the European Union. So basically, we just want to do the 
minimum that the European Union requires of us. That is the spirit of this 
IKEA PLAN. […]’ 
(3) The press conference and presentation were accompanied by a more detailed 
policy plan, available on the website. This document contains no references 
to IKEA other than those contained in the short presentation; 
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(4) The press conference was reported on the party’s social media. 
The essential arguments of the parties in the main proceedings 
4. In law, Vrijheidspartij largely follows the applicant’s trade mark analysis. The 
only reason Vrijheidspartij uses the reputation of the IKEA trade marks is to 
reinforce its own message and to increase the publicity and dissemination of its 
message. 
5. Vrijheidspartij argues it has ‘due’ cause for using the IKEA trade marks. 
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6. None of the parties disputes that the marks are well-known marks. The third 
defendant (Vrijheidsfonds) acknowledges having used those marks without the 
applicant’s consent and having conducted the contested campaign on behalf and 
for the account of the de facto association Vlaams Belang or its directors. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7. A trade mark right is an industrial or intellectual property right that is recognised 
as a fundamental right and finds protection in, for example, Article 1 of the 
Protocol to the ECHR and Article 17(2) of the Charter. 
8. However, trade mark law is not absolute. The exercise of the proprietor’s right to 
protect his specific interests should be limited to cases where the use of the sign 
by a third party affects or is liable to affect the functions of the trade mark. These 
functions include the origin function, the investment function and the advertising 
function. In that regard, the referring court refers to the judgment in Google 
France and Google. 
9. Moreover, protection against the use of the trade mark for other types of goods or 
services is limited by the possibility that a third party can invoke due cause. 
Similarly, if a third party seeks, through use, to take (manifestly) unjustified 
advantage of the reputation of the trade mark, or even damages the reputation of 
the trade mark, by the trade mark being associated with messages that reflect 
negatively on its image, this does not preclude the third party from invoking due 
cause. 
10. That exclusive right of the trade mark proprietor is counterbalanced by the 
freedom of expression of the alleged infringing party. That freedom of expression 
is not absolute either, but can be limited, for example, to protect the good name or 
rights of others, including trade mark rights in particular. 
11. When freedom of expression concerns expressions in the context of political 
discourse, the ECtHR accepts the highest possible degree of protection: ‘Freedom 
of expression is particularly valuable for political parties and their active 
members, and interference with the freedom of expression of a politician, 
especially when he is a member of an opposition party, requires the strictest 
scrutiny by the [ECtHR].’ In this regard, the referring court refers to the 
judgments of the ECtHR, 1 May 2011, Faruk Temel v. Turkey (§ 55); 14 March 
2013, Eon v. France (§ 59) and 23 April 1992, Castells v. Spain (§ 43). 
12. Trade mark law can thus be limited by freedom of expression and freedom of 
expression can be limited by trade mark law. National courts must weigh these 
rights against each other, bearing in mind that (i) clarity regarding the relevant 
criteria is desirable and (ii) an intervention even after balancing all interests is 
almost inconceivable according to ECtHR case-law. 
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13. Several sources (for instance, Recital 21 of Regulation (EU) 2017/1001; 
Recital 27 of Directive (EU) 2015/2436; the Constantin Film Produktion v 
EUIPO judgment, paragraph 56) recognise that the exclusive rights of the trade 
mark proprietor – and thus ‘due cause’ – must be interpreted in a way that fully 
respects freedom of expression. Moreover, in several trade mark cases, the Court 
of Justice seems to defend a broad interpretation of freedom of expression (see in 
particular the conclusions in Google France and Google, paragraphs 102 and 103, 
and L’Oréal and others, paragraph 45). Industrial rights do not automatically take 
precedence over freedom of expression. In cases of conflicts between rights of 
equal rank, the Court of Justice, in settled case-law (see Padawan, paragraph 43, 
and Painer, paragraph 132), always posits the rule that the national court must 
ensure a fair balance, taking into account all the circumstances of the case. What 
those circumstances are in the context of due cause and parody in trade mark law 
is now a completely open question. 
14. The interpretation in the Leidseplein Beheer and De Vries judgment provides 
guidance because, according to that judgment, freedom of expression (including 
political parody) can indeed constitute due cause in any case. However, further 
clarity is lacking. A question must therefore be referred for a preliminary ruling, 
asking what circumstances the national court may take into account in balancing 
interests and what importance should be attached to each criterion. 
15. Legal doctrine has attempted to harmonise the criteria that can be taken into 
account when assessing whether a fair balance exists. Such criteria may include: 
the commercial nature or purpose of the expression, the public interest, the social 
relevance and importance of the debate sought to be opened, the extent and 
intensity of the harm caused by the expression; the reputation of the right used; the 
degree of dissemination of the expression, whether its use needlessly damages the 
reputation of the trade mark; the extent to which an attempt is made to avoid 
confusion. 
16. In the Damn Pérignon judgment (on artistic freedom as due cause), the Benelux 
Court of Justice opted for a very broad interpretation of due cause in favour of 
freedom of expression. There is no due cause only if the third party explicitly 
intends to harm the trade mark proprietor. In the case of a parody (artistic or 
political), there may only rarely be an exclusive or primary intent to harm, 
because in normal circumstances the parody primarily serves an artistic or 
political message. There has been a lot of criticism of this ruling in legal doctrine 
and, moreover, that interpretation seems to be contrary to European Union law, 
since it does not allow all the relevant circumstances of the specific case to be 
taken into account, as only the intent to harm would be the decisive criterion. 
17. The referring court notes the following: 
‘– in the Deckmyn [and Vrijheidsfonds] judgment, the Court of Justice gave a 
broad interpretation to the concept of parody: parody ‘with ֹ’ a work (or trade 
mark) is also allowed. There are no criteria other than imitation of the work, with 
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certain differences, and a humorous or mocking intention. The question is whether 
that approach from copyright can also be extended to trade marks, and, if so, 
under what conditions. 
– legislative initiatives following the 2016 trade mark law reform and the 
recitals in the legislative texts themselves strongly emphasise that any exercise of 
trade mark rights must be fully consistent with freedom of expression. The 
legislator does not clarify under what conditions. 
– the case-law of the Court of Justice in trade mark cases also advocates a 
broad interpretation of freedom of expression. Trade mark law is economic 
legislation that need not go beyond what is necessary to protect the functions of 
the trade mark. That is reflected in the [Leidseplein Beheer and De Vries] 
judgment: due cause is not a necessity, but also gauges the subjective interests of 
the alleged infringing party and the search for a fair balance. What the criteria are 
for that in the context of freedom of expression, the judgment does not clarify. 
– the (scarce) Belgian case-law generally interprets due cause very 
restrictively (as necessity or with the alternatives test), which cannot stand up to 
Community case-law. It conflicts with the approach of Dutch case-law and is, 
moreover, widely rejected by Belgian and Dutch legal doctrine. That scarce 
Belgian case-law, incidentally, was delivered before the Damn Pérignon 
judgment. 
– as the legal doctrine points out, the Damn Pérignon judgment clarified very 
little in particular. The judgment deems the intention to harm the trade mark 
proprietor decisive and so leaves no room for all the circumstances relevant to the 
specific case. The ambiguity therefore remains. Moreover, the answer in the 
Damn Pérignon judgment refers only to freedom of artistic expression. The 
question is whether other criteria should apply to freedom of political expression.’ 
18. Given the importance of balancing freedom of expression against trade mark law, 
the Enterprise Court feels it is appropriate to refer a question to the Court of 
Justice for a preliminary ruling. 
19. Here, the open-ended formulation of the question is pertinent. The Court of Justice 
recently ruled on the balance between the protection of personal data and the right 
to be forgotten, on the one hand, and the right to freedom of expression, including 
the right to receive information, on the other. The Court adopted the case-law of 
the ECtHR and provided clarity to national courts as to the relevant criteria; the 
question is whether those criteria and/or others apply here too (see TU and RE v 
Google, C-460/20, paragraph 20). 
20. In the present case, the questions of interpretation relate to Article 9(2)(c) of 
Regulation (EU) 2017/1001 and Article 10(2)(c) of Directive (EU) 2015/2436. 
Where an interpretation concerns the interpretation of a provision contained in 
both Directive (EU) 2015/2436 and the BCIP (transposing Directive (EU) 
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2015/2436), the Court of Justice has de facto and de jure sole jurisdiction to 
provide a uniform interpretation.