CJEU rules on when the ‘due cause’ defence falls flat (pack)

When can freedom of expression amount to “due cause” sufficient to defeat a claim for infringement of a mark with a reputation? For the Brussels Business Court, the answer, like constructing a Billy bookcase on a Sunday afternoon, proved rather more complex than might have been appreciated at first glance and so the question was referred to the Court of Justice of the European Union in Case C-298/23 (Inter IKEA Systems BV v Algemeen Vlaams Belang VZW, Vrijheidsfonds VZW). The resulting judgment provides useful guidance for anyone seeking to use (or enforce against the use of) a well-known mark used in a political context. 

Background

In November 2022, the Belgian political party Vlaams Belang unveiled its immigration reform proposals under a catchy banner: the “IKEA-PLAN” — standing for Immigratie Kan Echt Anders (“Immigration Really Can Be Different”). The campaign didn't stop at borrowing the name. It featured IKEA’s distinctive blue-and-yellow colour palette, its familiar typography, and illustrations mimicking the wordless assembly instructions that have challenged flat-pack builders the world over. The party’s 15 policy proposals were even described as ready to be “assembled” by the Belgian Government. The reference, in short, was not subtle.

IKEA — or more precisely, its licensor Inter IKEA Systems BV — sued before the Brussels Business Court for trade mark infringement. Vlaams Belang's fundraising arm, Vrijheidsfonds, admitted it had used the marks without consent but argued it had “due cause”: its use was political expression, protected by freedom of speech under the EU Charter of Fundamental Rights.

The Brussels court referred the issue to the Court of Justice of the European Union, and the Court handed down its judgment on 8 September 2026. The central question: can freedom of expression — including political parody — amount to “due cause” that excuses the unauthorised use of a well-known trade mark^[1]?

The answer, in principle, is yes — but the Court made clear that simply waving the free-speech banner is not enough. A third party must demonstrate specific grounds for its use and show that those grounds outweigh the trade mark owner’s rights. The Court set out a multi-factor balancing test, requiring national courts to consider, among other things:

• Good faith and intention — was the use genuinely aimed at exercising free expression, or merely at riding on the brand’s coat-tails?
• Public interest — does the expression contribute to a genuine public debate? Political speech enjoys broader protection than purely commercial expression.
• The consequences of use and proportionality — how intense, widespread, and similar to the original mark was it and what is the detriment caused to the proprietor or its mark?
• Risk of false association — might the public think the brand owner endorsed the political message?

Applying those factors to the facts, the Court gave a strong steer: Vrijheidsfonds appeared to have hijacked the IKEA brand purely to amplify its own message, on a topic entirely unrelated to IKEA or its products. The marks were reproduced with high fidelity, disseminated widely online, and risked creating the impression that IKEA supported the party’s views on immigration. That, the Court indicated, was unlikely to constitute due cause.

(Allen) Key Takeaway

For brand owners, this is reassuring: well-known trade marks are not fair game simply because someone cloaks their use in the language of political commentary. The CJEU has confirmed that freedom of expression can, in principle, justify such use, but has set the bar high — particularly where the expression has no real connection to the brand itself and merely exploits its fame. For anyone tempted to borrow a famous brand for a campaign, the message is equally clear: political parody of a trade mark is not a trump card. If the use is intensive, highly imitative, and unrelated to the brand’s own conduct, then any defendant trying to construct an argument around ‘due cause’ is likely to find that it is missing a crucial piece: a valid legal defence.
 

^[1] Or more specifically, should Article 9(2)(c) of Regulation 2017/1001, Article 10(2)(c) and (6) of Directive 2015/2436, read in conjunction with Article 11 and Article 17(2) of the Charter of Fundamental Rights of the European Union be interpreted as meaning that, where a third party uses a sign that is identical with, or similar to, a trade mark with a reputation, freedom of expression, including freedom to express political opinions and political parody, may constitute ‘due cause’ within that meaning.