Contents
Judgment of the Court (Grand Chamber)8 September 2026note(Reference for a preliminary ruling — Trade marks — Regulation (EU) 2017/1001 — Article 9(2)(c) — Directive (EU) 2015/2436 — Article 10(2)(c) — Article 10(6) — Rights conferred by a trade mark — Concept of use in the course of trade, in relation to goods or services, of a sign — Concept of due cause — Charter of Fundamental Rights of the European Union — Striking of a balance between fundamental rights — Article 11 of the Charter of Fundamental Rights — Freedom of expression — Article 17 of that charter — Right to property — Right of the proprietor of a trade mark with a reputation to prevent use by a third party of a sign identical with, or similar to, a trade mark — Use of such a sign by the third party in the context of a political campaign)In Case C‑298/23,REQUEST for a preliminary ruling under Article 267 TFEU from the Nederlandstalige ondernemingsrechtbank Brussel (Brussels Business Court (Dutch-speaking), Belgium), made by decision of 4 May 2023, received at the Court on 8 May 2023, in the proceedingsInter IKEA Systems BVvAlgemeen Vlaams Belang VZW,S,T,U,V,Vrijheidsfonds VZW,THE COURT (Grand Chamber),composed of K. Lenaerts, President, T. von Danwitz, Vice-President, F. Biltgen, K. Jürimäe, L. Arastey Sahún, I. Ziemele, J. Passer and O. Spineanu-Matei (Rapporteur), Presidents of Chambers, S. Rodin, D. Gratsias, M. Gavalec, Z. Csehi, B. Smulders, N. Fenger and R. Frendo, Judges,Advocate General: M. Szpunar,Registrar: R. Stefanova-Kamisheva, Administrator,having regard to the written procedure and further to the hearing on 10 June 2025,after considering the observations submitted on behalf of:– Inter IKEA Systems BV, by J. Janssen, D. Noesen and F. Petillion, advocaten,– Vrijheidsfonds VZW, by J. Muyldermans, advocaat,– the European Commission, by P. Němečková, J. Samnadda, M. ter Haar and P.J.O. Van Nuffel, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 November 2025,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’), 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 (OJ 2017 L 154, p. 1) and of Article 10(2)(c) and (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 (OJ 2015 L 336, p. 1).
2The request has been made in proceedings between Inter IKEA Systems BV (‘Inter IKEA’), on the one hand, and Algemeen Vlaams Belang VZW, S, T, U, V and Vrijheidsfonds VZW, on the other, concerning an action for infringement of Benelux and EU trade marks of which Inter IKEA is the proprietor.
Legal context
European Union law
The Charter
3Under Article 11 of the Charter, headed ‘Freedom of expression and information’:1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.2. The freedom and pluralism of the media shall be respected.’
4Article 17 of the Charter, headed ‘Right to property’, provides:1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. …2. Intellectual property shall be protected.’
5Article 52 of the Charter, headed ‘Scope and interpretation of rights and principles’, provides:1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.…3. In so far as this Charter contains rights which correspond to rights guaranteed by the [Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR)], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.…’
Directive 2015/2436
6Recital 27 of Directive 2015/2436 states:‘The exclusive rights conferred by a trade mark should not entitle the proprietor to prohibit the use of signs or indications by third parties which are used fairly and thus in accordance with honest practices in industrial and commercial matters. … Furthermore, the proprietor should not be entitled to prevent the fair and honest use of the mark for the purpose of identifying or referring to the goods or services as those of the proprietor. … Use of a trade mark by third parties for the purpose of artistic expression should be considered as being fair as long as it is at the same time in accordance with honest practices in industrial and commercial matters. Furthermore, this Directive should be applied in a way that ensures full respect for fundamental rights and freedoms, and in particular the freedom of expression.’
7Article 10 of Directive 2015/2436, headed ‘Rights conferred by a trade mark’, is worded as follows:1. The registration of a trade mark shall confer on the proprietor exclusive rights therein.2.Without prejudice to the rights of proprietors acquired before the filing date or the priority date of the registered trade mark, the proprietor of that registered trade mark shall be entitled to prevent all third parties not having his consent from using in the course of trade, in relation to goods or services, any sign where:…(c) the sign is identical with, or similar to, the trade mark irrespective of whether it is used in relation to goods or services which are identical with, similar to, or not similar to, those for which the trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.3.The following, in particular, may be prohibited under paragraph 2:(a) affixing the sign to the goods or to the packaging thereof;(b) offering the goods or putting them on the market, or stocking them for those purposes, under the sign, or offering or supplying services thereunder;(c) importing or exporting the goods under the sign;(d) using the sign as a trade or company name or part of a trade or company name;(e) using the sign on business papers and in advertising;(f) using the sign in comparative advertising in a manner that is contrary to Directive 2006/114/EC [of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21)].…6. Paragraphs 1, 2, 3 and 5 shall not affect provisions in any Member State relating to the protection against the use of a sign other than use for the purposes of distinguishing goods or services, where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.’
Regulation 2017/1001
8Recital 21 of Regulation 2017/1001 states:‘The exclusive rights conferred by an EU trade mark should not entitle the proprietor to prohibit the use of signs or indications by third parties which are used fairly and thus in accordance with honest practices in industrial and commercial matters. … Use of a trade mark by third parties for the purpose of artistic expression should be considered as being fair as long as it is at the same time in accordance with honest practices in industrial and commercial matters. Furthermore, this Regulation should be applied in a way that ensures full respect for fundamental rights and freedoms, and in particular the freedom of expression.’
9Article 9 of that regulation, headed ‘Rights conferred by an EU trade mark’, provides:1. The registration of an EU trade mark shall confer on the proprietor exclusive rights therein.2.Without prejudice to the rights of proprietors acquired before the filing date or the priority date of the EU trade mark, the proprietor of that EU trade mark shall be entitled to prevent all third parties not having his consent from using in the course of trade, in relation to goods or services, any sign where:…(c) the sign is identical with, or similar to, the EU trade mark irrespective of whether it is used in relation to goods or services which are identical with, similar to or not similar to those for which the EU trade mark is registered, where the latter has a reputation in the Union and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the EU trade mark.3.The following, in particular, may be prohibited under paragraph 2:(a) affixing the sign to the goods or to the packaging thereof;(b) offering the goods or putting them on the market, or stocking them for those purposes, under the sign, or offering or supplying services thereunder;(c) importing or exporting the goods under the sign;(d) using the sign as a trade or company name or part of a trade or company name;(e) using the sign on business papers and in advertising;(f) using the sign in comparative advertising in a manner that is contrary to Directive [2006/114].…’
The Benelux Convention
10Article 2.20 of the Benelux Convention on Intellectual Property (trademarks and designs) of 25 February 2005, signed in The Hague by the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, in the version applicable to the dispute in the main proceedings (‘the Benelux Convention’), headed ‘Rights conferred by a trade mark’, provides:1. The registration of a trade mark referred to in Article 2.2 shall confer on the proprietor exclusive rights therein.2. Without prejudice to the rights of proprietors acquired before the filing date or the priority date of the registered trade mark, and without prejudice to the possible application of ordinary law in matters of civil liability, the proprietor of that registered trademark shall be entitled to prevent all third parties not having his consent from using any sign where such sign:…(c) is identical with, or similar to, the trade mark irrespective of whether it is used in relation to goods or services which are identical with, similar to, or not similar to, those for which the trade mark is registered, where the latter has a reputation in the Benelux territory and where use in the course of trade of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark;(d) is used for purposes other than those of distinguishing goods or services, where use of the sign without due cause, would take unfair advantage of or be detrimental to the distinctive character or the repute of the trade mark.…’
The dispute in the main proceedings and the question referred for a preliminary ruling
11Inter IKEA is the proprietor of the following four trade marks (together, ‘the IKEA trade marks’):– the Benelux word mark IKEA, registered on 29 January 1971 for goods in Class 20 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, inter alia, to the following description: ‘Furniture’;– the Benelux word mark IKEA, registered on 12 October 1976 for goods in Class 11, Class 24 and Class 27 corresponding, respectively, to the following descriptions in particular: ‘Lighting’, ‘Textiles’ and ‘Carpets’;– the Benelux semi-figurative mark represented below, registered on 27 February 1987 for a very broad range of goods and services:– the EU word mark IKEA, registered on 1 October 1998 for a very wide range of goods and services.
12On 14 November 2022, the political party Vlaams Belang publicly presented its political plan titled ‘IKEA-PLAN – Immigratie Kan Echt Anders’ (‘IKEA-Plan – Immigration Really Can Be Different’) at a press conference, the purpose of that plan being a reform of Belgian asylum and immigration policy. During that presentation, the speaker stated that that plan did not refer to ‘Ingvar Kamprad Elmtaryd and Agunnaryd [which is] the true meaning of the acronym IKEA’. That plan listed 15 policy proposals described as being ready to be assembled by the Belgian Government. Those proposals were accompanied by illustrations containing signs corresponding to the IKEA trade marks and characters resembling those appearing in the assembly instructions for IKEA’s products. That press conference and that presentation were supplemented by a more developed policy plan, which was available only in electronic form on the website of Vlaams Belang. That press conference was mentioned on the social media channels of that political party.
13On 22 November 2022, Inter IKEA brought proceedings alleging infringement of the IKEA trade marks before the Nederlandstalige ondernemingsrechtbank Brussel (Brussels Business Court (Dutch-speaking), Belgium), which is the referring court, against Algemeen Vlaams Belang and Vrijheidsfonds, two not-for-profit associations, and against natural persons representing Vlaams Belang. The referring court held the proceedings to be admissible only in so far as they related to Vrijheidsfonds, which conducted the Vlaams Belang campaign in the name and on behalf of that party or its representatives.
14The referring court states that Vrijheidsfonds acknowledges that it used the IKEA trade marks without the consent of their proprietor and that that association agreed to cease using them until delivery of the final decision in the main proceedings. That court points out that that association claims to have used the reputation of those trade marks in order to reinforce its message and increase its dissemination, believing that that constitutes ‘due cause’ within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) and (6) of Directive 2015/2436.
15In that regard, the referring court takes the view that the exclusive rights of a trade mark proprietor are property rights guaranteed by Article 17(2) of the Charter, but that those rights are not absolute.
16Accordingly, the exercise of those exclusive rights is, according to that court, limited to situations in which the use of the trade mark concerned by a third party adversely affects the functions of that trade mark. In particular, since the function of a trade mark consisting of guaranteeing the origin of the goods or services is connected to the principle of speciality, that function can be understood only where there is a likelihood of confusion in the mind of the consumer as to the origin of the goods or service covered by that trade mark. An adverse effect on a trade mark’s investment function is conceivable only where the use by a third party in question substantially impedes the use of that mark by its proprietor with the aim of acquiring or preserving a reputation liable to attract consumers or build consumer loyalty. An adverse effect on a trade mark’s advertising function entitles the proprietor of that trade mark to prohibit the use by a third party in question only if that use adversely affects that trade mark as an element of sales promotion or as an instrument of its proprietor’s commercial strategy.
17Furthermore, also according to that court, the concept of ‘due cause’, which may be relied on by a third party, must be interpreted in a manner consistent with the fundamental right to freedom of expression, guaranteed by Article 10 ECHR, and by Article 11 of the Charter, that right not being absolute either.
18Freedom of expression may indeed be limited in order to protect other interests. Restrictions on that freedom which are provided for by law and which are necessary in a democratic society, in particular for the protection of the reputation or the rights of others, are therefore legitimate; they include, according to the case-law of the European Court of Human Rights relating to, inter alia, Article 10 ECHR, industrial property rights, in particular trade mark rights.
19According to the referring court, the present case therefore concerns a conflict between fundamental rights of the same rank, namely the right to property and the right to freedom of expression, between which it is for the referring court to strike a balance.
20In the first place, that court notes that, according to several sources, the exclusive right of the proprietor of a trade mark must be interpreted in a manner which fully respects freedom of expression.
21In that regard, that court refers, first of all, to the relationship between the right to property of the proprietor of a trade mark and the right to freedom of expression of a third party which is recognised, in similar terms, by both recital 27 of Directive 2015/2436 and recital 21 of Regulation 2017/1001, as the Court of Justice pointed out in the judgment of 27 February 2020, Constantin Film Produktion v EUIPO (C‑240/18 P, EU:C:2020:118, paragraph 56).
22Next, it states that the Court’s case-law is based on a broad interpretation of freedom of expression, which is apparent in particular from the Opinion of Advocate General Poiares Maduro in Joined Cases Google France and Google (C‑236/08 to C‑238/08, EU:C:2009:569, points 102 and 103) and the Opinion of Advocate General Jääskinen in L’Oréal and Others (C‑324/09, EU:C:2010:757, point 48).
23Lastly, the referring court notes that, during the legislative procedure preceding the adoption of Directive 2015/2436, the European Parliament had proposed the adoption of an exception to those exclusive rights in the case of any parodic use of that trade mark, although that proposal was not accepted.
24In the second place, the referring court takes the view that the exclusive rights of the proprietor of a trade mark do not automatically override freedom of expression. According to the case-law of the Court, on the contrary, a fair balance must be struck, on a case-by-case basis and in the light of all the circumstances of the case, between the right to property and freedom of expression, which are to rank equally. That court refers, in that regard, to the case-law of the Court of Justice in the field of copyright.
25In the third place, the referring court observes that, although the circumstances that may come within the concept of ‘due cause’ in the context of the parody of a trade mark have not yet been defined, the Court did abandon the restrictive interpretation of that concept in its judgment of 6 February 2014, Leidseplein Beheer and de Vries (C‑65/12, EU:C:2014:49, paragraphs 45 and 46). That court notes that the Court of Justice has stated that that concept may also relate to the subjective interests of a third party using a sign which is identical with, or similar to, the trade mark with a reputation and that that concept seeks ‘to strike a balance between the interests in question’, with the result that ‘the claim by a third party that there is due cause for using a sign which is similar to a mark with a reputation cannot lead to the recognition, for the benefit of that third party, of the rights connected with a registered mark, but rather obliges the proprietor of the mark with a reputation to tolerate the use of the similar sign’.
26Furthermore, that court observes that the concept of ‘due cause’ has given rise to differing interpretations in Belgian and Netherlands case-law. In particular, the Belgian courts interpret that concept very restrictively. For the purposes of harmonisation, legal academics have proposed various criteria, such as the nature or purpose of the opinion expressed, the extent of the detriment suffered by the proprietor as a result of the opinion expressed, the duration or frequency of the expression of opinion, the scale of the reputation of the trade mark concerned, the existence of a gratuitous adverse effect on the reputation of that trade mark or the link, in the mind of the public, between the proprietor of that trade mark and the opinion expressed.
27The referring court also observes that the Benelux Court of Justice, in its judgment of 14 October 2019, Moët Hennessy Champagne Service (MHCS) v Cedric Art (Case A 2018/1/8), held that ‘artistic licence constitutes due cause within the meaning of [Article 2.20(2)(d) of the Benelux Convention] for the use of a sign identical with, or similar to, the trade mark, for purposes other than those of distinguishing goods or services, if the artistic expression is original and results from a creative process which is not intended to be detrimental to the trade mark or its proprietor’. The referring court takes the view that, according to that very broad interpretation of the concept of ‘due cause’, such a ground will be ruled out only if the third party had the intention of harming the proprietor of the trade mark concerned. That judgment gave rise to criticism among legal academics, in particular because it refers only to freedom of artistic expression, without listing the criteria for striking a fair balance between the right to property conferred by a trade mark on its proprietor and the freedom of expression of a third party, and because the question remains as to whether criteria other than such an intention to harm must apply to freedom of political expression.
28In those circumstances, the Nederlandstalige ondernemingsrechtbank Brussel (Brussels Business Court (Dutch-speaking)) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Can freedom of expression, including the freedom to express political opinions and political parody, as guaranteed by Article 10 [ECHR] and Article 11 of the [Charter], 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 [2017/1001] as well as Article 10(2)(c) and [(6)] of Directive [2015/2436]?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:– the extent to which the expression has a commercial character or purpose;– the extent to which competitive motives are at play between parties;– the extent to which the expression has a public interest, is socially relevant or opens a debate;– the relationship between the above criteria;– the degree of reputation of the trade mark invoked;– the extent of the infringing use, its intensity and systematic nature and the extent of its dissemination, 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;– the extent to which the expression, and circumstances accompanying that expression, such as the name of the expression and its promotion, are detrimental to the reputation, distinctive character and image of the trade marks invoked (the “advertising function”);– 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?’
Admissibility of the request for a preliminary ruling
29In its written observations, Inter IKEA submits that it brought an appeal against the judgment by means of which the present request for a preliminary ruling was referred to the Court and that, therefore, the referring court is relieved of the dispute in the main proceedings because of the devolutive effect of that appeal. In that context, Inter IKEA refers to the order of 24 March 2009, Nationale Loterij (C‑525/06, EU:C:2009:179, paragraphs 10 and 11) and submits that, even if the request for a preliminary ruling is not withdrawn, there is no need to respond to the question referred, since the justification for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute. Furthermore, the referring court allegedly failed to provide all the necessary information and to explain specifically how the answer to the question referred for a preliminary ruling is of use and objectively necessary for the main proceedings.
30In that regard, the Court points out that, according to settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (see judgment of 1 December 1965, Schwarze, 16/65, EU:C:1965:117, page 1094; order of 26 January 1990, Falciola, C‑286/88, EU:C:1990:33, paragraph 7; and judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 21).
31In the context of that cooperation, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see judgments of 8 November 1990, Gmurzynska-Bscher, C‑231/89, EU:C:1990:386, paragraph 20, and of 25 February 2025, Alphabet and Others, C‑233/23, EU:C:2025:110, paragraph 26 and the case-law cited).
32It follows that a question referred for a preliminary ruling relating to EU law enjoys a presumption of relevance. The Court may refuse to rule on such a question only where it is quite obvious that the interpretation of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the question submitted to it (judgment of 25 February 2025, Alphabet and Others, C‑233/23, EU:C:2025:110, paragraph 27 and the case-law cited).
33In addition, in the case of a court or tribunal against whose decisions there is a judicial remedy under national law, Article 267 TFEU does not preclude decisions of such a court by which questions are referred to the Court for a preliminary ruling from remaining subject to the remedies normally available under national law. Nevertheless, in the interests of clarity and legal certainty, the Court must abide by the decision to refer, which must have its full effect so long as it has not been revoked (judgments of 12 February 1974, Rheinmühlen-Düsseldorf, 146/73, EU:C:1974:12, paragraph 3, and of 16 December 2008, Cartesio, C‑210/06, EU:C:2008:723, paragraph 89).
34In the present case, the referring court stated that the appeal brought by Inter IKEA against the judgment by means of which the request for a preliminary ruling was referred to the Court has in the meantime been dismissed as inadmissible. Furthermore, that court has not revoked the order for reference, taking the view that it is for the Court to rule on the question referred for a preliminary ruling, which Inter IKEA, moreover, no longer disputes.
35Thus, unlike the case which gave rise to the order of 24 March 2009, Nationale Loterij (C‑525/06, EU:C:2009:179, paragraphs 8 to 11), which concerned a dispute decided upon by an appeal court which varied the order for reference and thus assumed responsibility for ensuring compliance with EU law, the dispute at issue in the main proceedings is pending before the referring court and remains unresolved.
36Furthermore, it is clear from the order for reference that the dispute in the main proceedings concerns the question of the lawfulness of the use, by a third party, of a sign that is identical with, or similar to, Benelux and EU trade marks that have a reputation, on the ground that such use without the consent of the proprietor of those marks constitutes a form of freedom of expression of that third party. In that regard, the referring court is uncertain as to the interpretation of the concept of ‘due cause’ for using a sign identical with, or similar to, a mark that has a reputation within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) and (6) of Directive 2015/2436, in particular as to whether freedom of expression, including the freedom to express political opinions and political parody, may constitute such due cause.
37In addition, that court sets out the precise reasons which led it to be uncertain as to the interpretation of those provisions and to take the view that it is necessary to refer a question to the Court of Justice for a preliminary ruling.
38In those circumstances, it appears that the interpretation of those provisions sought is related to the genuine facts of the main action and its subject matter and that an answer from the Court to the question referred will be of use for the resolution of that dispute.
39Consequently, the request for a preliminary ruling is admissible.
Consideration of the question referred
40As a preliminary point, it should be noted that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (see judgments of 20 March 1986, Tissier, 35/85, EU:C:1986:143, paragraph 9, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 44).
41In those circumstances, the Court finds that, by its question, the referring court asks, in essence, whether 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, must 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 the freedom to express political opinions and political parody, may constitute ‘due cause’ within the meaning, first, of Article 9(2)(c) of Regulation 2017/1001, of Article 10(2)(c) of Directive 2015/2436, and, second, of Article 10(6) of that directive. In addition, that court is uncertain as to what criteria the national court must take into account when called upon to assess the balance between the fundamental rights concerned and the importance to be attached to each of those criteria.
Preliminary observations
42At the outset, the Court notes that the IKEA trade marks are comprised of, first, an EU trade mark, which is governed by Regulation 2017/1001, and, second, three Benelux trade marks, which come within the system of protection under the Benelux Convention, adopted on the basis of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), which was repealed by Directive 2015/2436, which lays down the rules currently applicable to those trade marks.
43Furthermore, it is apparent from the order for reference that it is not disputed, in the case in the main proceedings, that the IKEA trade marks have a reputation within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) and (6) of Directive 2015/2436 and that the IKEA trade marks were used by Vrijheidsfonds without the consent of Inter IKEA, their proprietor.
44As is apparent from Article 9(1) of Regulation 2017/1001 and Article 10(1) of Directive 2015/2436 respectively, registration of a national or EU trade mark confers on its proprietor exclusive rights therein. Those rights enable the trade mark proprietor to protect his or her specific interests as proprietor of the mark, that is to say, to ensure that the trade mark can fulfil the functions that are specific to it. Therefore, the exercise of those rights must be reserved to cases in which a third party’s use of the sign adversely affects, or is liable adversely to affect, one of the functions of the trade mark. Those functions include the essential function of the mark, which is to guarantee to consumers the origin of the goods or service in question, as well as, inter alia, other functions such as the function of guaranteeing the quality of the goods or service or the functions of communication, investment or advertising (see, to that effect, judgments of 22 September 2011, Interflora and Interflora British Unit, C‑323/09, EU:C:2011:604, paragraphs 37 and 38, and of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 30).
45Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436 determine the scope of the protection granted to proprietors of trade marks with a reputation. Under those provisions, the proprietor of such a registered trade mark is entitled to prevent all third parties not having his or her consent from using in the course of trade, in relation to goods or services, any sign which is identical with, or similar to, that trade mark, irrespective of whether the goods or services for which it is used are identical, similar or not similar to those for which the national or EU trade mark is registered, if such use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of that trade mark. That protection of the exclusive rights of the proprietor of an EU or national trade mark is fully harmonised.
46By contrast, Article 10(6) of Directive 2015/2436 allows Member States, under certain conditions, to provide for or maintain, in their national law, additional protection of the exclusive rights of the proprietor of a national trade mark. According to that provision, paragraphs 1, 2, 3 and 5 are not to affect provisions applicable in any Member State relating to the protection against the use of a sign other than use for the purposes of distinguishing goods or services, where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the national trade mark. As regards Benelux trade marks, such protection is provided for in Article 2.20(2)(d) of the Benelux Convention.
47Thus, unlike Article 10(2)(c) of Directive 2015/2436, Article 10(6) of that directive does not require that the sign at issue be used by a third party in the course of trade and makes provision for when the sign is used by the third party for purposes other than that of distinguishing goods or services. Accordingly, that use may occur in the course of trade or outside of the course of trade, but, in any event, not in relation to goods or services, and therefore not as a trade mark.
48In the present case, the order for reference does not make it possible to determine whether the use of the IKEA trade marks by Vrijheidsfonds occurred in the course of trade and in relation to goods or services, with the result that it comes within the scope of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436, or whether they were used for a purpose other than that of distinguishing goods or services, a situation which would lead it to come within the scope of Article 10(6). In particular, that order contains neither elements of analysis nor any conclusion in that regard. The fact that the referring court seeks an interpretation of all of those provisions appears to indicate that that court has not yet established which of those two situations applies to the dispute in the main proceedings or that it is inclined to take the view that that dispute may come within the scope of both of those two situations at the same time.
49Although it is for the referring court to carry out the necessary assessments, taking into account the fact that those trade marks were used in the context of a political campaign, by a not-for-profit association which conducted that campaign in the name and on behalf of a political party, the Court may, in order to provide an answer that is of use to that court, provide it with information relating to the interpretation of EU law on the basis of which that court may carry out those assessments.
50In that regard, according to settled case-law, use of a sign identical with, or similar to, an EU trade mark occurs ‘in the course of trade’ if it is in the context of a commercial activity intended to obtain an economic advantage and not in the private sphere (see, to that effect, judgments of 12 November 2002, Arsenal Football Club, C‑206/01, EU:C:2002:651, paragraph 40, and of 25 January 2024, Audi (Mounting element for emblem on a radiator grille), C‑334/22, EU:C:2024:76, paragraph 34).
51Moreover, the wording ‘in relation to goods or services’ relates, in principle, to goods or services of a third party who uses a sign identical with, or similar to, the mark with a reputation. Should the case arise, it can also refer to goods or services of another person on whose behalf the third party is acting (see, to that effect, judgments of 11 April 2019, ÖKO-Test Verlag, C‑690/17, EU:C:2019:317, paragraph 29 and the case-law cited, and of 30 April 2020, A (Infringement by importing ball bearings), C‑772/18, EU:C:2020:341, paragraph 27 and the case-law cited). In addition, Article 9(3) of Regulation 2017/1001 and Article 10(3) of Directive 2015/2436 give a non-exhaustive list of the kinds of use which the proprietor may prohibit under paragraph 1 of those articles.
52In the present case, Vrijheidsfonds is a not-for-profit association, and it does not appear from the order for reference that that association is pursuing an economic activity; however, this is something for the referring court to verify. In that regard, the Court notes that the use of a trade mark by a not-for-profit organisation does come within the scope of the course of trade, provided, however, that that association is acting as an economic operator (see, to that effect, judgments of 9 December 2008, Verein Radetzky-Orden, C‑442/07, EU:C:2008:696, paragraphs 16 to 19, and of 12 July 2011, L’Oréal and Others, C‑324/09, EU:C:2011:474, paragraph 54). In its written observations, Vrijheidsfonds submitted that, although the use in question occurred within the economic sphere, it did not pursue a commercial advantage, but was intended to give rise to political debate, without that being linked to the sale of goods or services. At the hearing, in reply to the questions put by the Court, Vrijheidsfonds nevertheless stated that that use did not come within the private sphere, but within the course of trade, in so far as the objective pursued was to obtain an economic advantage.
53As regards the question whether Vrijheidsfonds used the IKEA trade marks in relation to goods or services, it is common ground that they were used to promote a political programme. As the Advocate General observed, in essence, in points 74 to 76 of his Opinion, although such a programme does not in itself constitute either goods or a service, certain uses of a trade mark in connection with the organisation of political meetings or the promotion of such a programme, such as affixing that trade mark to promotional items or using it in promotional online content, may be regarded as having been undertaken in relation to goods or services. It will be for the referring court to determine whether that was the case in the present instance.
54If that court were to find that the IKEA trade marks at issue in the main proceedings were not used by Vrijheidsfonds in the course of trade and in relation to goods or services, it would have to examine that use, vis-à-vis solely the Benelux trade marks, in the light of the provisions of the Benelux Convention which implement Article 10(6) of Directive 2015/2436.
55However, if that court were to conclude that the IKEA trade marks at issue in the main proceedings were used or were also used by Vrijheidsfonds in the course of trade in relation to goods or services, that use would have to be examined in the light of Article 9(2)(c) of Regulation 2017/1001 and the provisions of the Benelux Convention which transposed Article 10(2)(c) of Directive 2015/2436.
Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436
56Where a third party uses, in the course of trade, in relation to goods or services, a sign which is similar to, or identical with, a trade mark with a reputation, it is for the national court to examine whether that use has made it possible to take unfair advantage of, or has been detrimental to, the distinctive character or the repute of that trade mark, within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436, or whether there is a serious risk that at least one of those infringements will occur in the future, the burden of proof in that regard being borne by the proprietor of that trade mark with a reputation (see, to that effect, judgment of 27 November 2008, Intel Corporation, C‑252/07, EU:C:2008:655, paragraph 39).
57In that regard, the Court has held that detriment to the distinctive character of a mark with a reputation (dilution, whittling away or blurring) is caused when that mark’s ability to identify the goods or services for which it is registered is weakened, whilst detriment to the repute of a mark (tarnishment or degradation) is caused when the goods or services for which the identical or similar sign is used by the third party may be perceived by the public in such a way that the trade mark’s power of attraction is reduced (see, to that effect, judgment of 22 September 2011, Interflora and Interflora British Unit, C‑323/09, EU:C:2011:604, paragraph 73 and the case-law cited).
58As regards the concept of ‘taking unfair advantage of the distinctive character or the repute of the trade mark’, (parasitism or free-riding) covers situations where the third party tries, by using that trade mark, to ride on the coat-tails of the trade mark in order to benefit from its power of attraction, reputation and prestige and to exploit, without paying any financial compensation, the marketing effort expended by the proprietor of the trade mark in order to create and maintain the mark’s image. That advantage relates not to the detriment caused to the mark, but to the advantage taken by the third party as a result of the use of the identical or similar sign. Consequently, that advantage may be unfair, even if the use of the identical or similar sign is not detrimental to the repute of the mark or, more generally, to its proprietor (see, to that effect, judgment of 18 June 2009, L’Oréal and Others, C‑487/07, EU:C:2009:378, paragraphs 41, 43 and 50, and of 22 September 2011, Interflora and Interflora British Unit, C‑323/09, EU:C:2011:604, paragraph 74).
59Where the proprietor of a trade mark with a reputation has demonstrated the existence of such a genuine and current infringement of that mark or, failing that, of a serious risk that such infringement will occur in the future, it is for the third party which has used a sign identical with, or similar to, the trade mark with a reputation to establish that it has due cause for such use, within the meaning of Article 9(2)(c) of Regulation 2017/1001 or Article 10(2)(c) of Directive 2015/2436 (see, to that effect, judgment of 27 November 2008, Intel Corporation, C‑252/07, EU:C:2008:655, paragraph 39).
The concept of due cause
60Since the referring court asks whether Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436, read in conjunction with Article 11 and Article 17(2) of the Charter, may be interpreted as meaning that freedom of expression may constitute such due cause, the Court finds that the acts of EU law relating to trade marks do not define the concept of ‘due cause’ and that that concept must therefore be interpreted in the light of the overall scheme and objectives of the system of which it forms part (see, to that effect, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraphs 27 and 28).
61In that respect, the Court notes that the rights of the trade mark proprietor are covered by Article 17 of the Charter, which guarantees the right to property and paragraph 2 of which refers to intellectual property. In addition, when interpreting Article 17, it is necessary to take into consideration the case-law of the European Court of Human Rights concerning Article 1 of Protocol No 1 to the ECHR, which lays down protection of the right to property as the minimum threshold of protection (see, to that effect, judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 72 and the case-law cited). The European Court of Human Rights has held previously that that protection also applies to intellectual property rights, including trade marks (ECtHR, 11 January 2007, Anheuser-Busch Inc. v. Portugal, CE:ECHR:2007:0111JUD007304901, § 72).
62However, the right to intellectual property, enshrined in Article 17(2) of the Charter, is not absolute, but a balance must be struck between that right and other fundamental rights, including, inter alia, the freedom of expression, protected by Article 11(1) of the Charter (judgment of 14 April 2026, Pelham (Concept of ‘pastiche’), C‑590/23, EU:C:2026:290, paragraph 46 and the case-law cited).
63Thus, although the registration of a trade mark, be it as an EU trade mark or a national trade mark, confers on its proprietor exclusive rights in respect of that mark, those exclusive rights are not absolute, since the EU legislature has, on the contrary, precisely delimited the scope of those rights (see, to that effect, judgment of 11 April 2019, ÖKO-Test Verlag, C‑690/17, EU:C:2019:317, paragraph 39).
64The purpose of both Regulation 2017/1001 and Directive 2015/2436 is generally to strike a balance between the interest which the proprietor of a trade mark has in the functions of that trade mark, on the one hand, and the interests of other economic operators in having signs capable of denoting their goods and services, on the other (see, to that effect, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 41).
65It follows that the protection of rights which the proprietor of a trade mark derives from that regulation or that directive is not unconditional, since in order to maintain the balance between those interests that protection is limited, in particular, to those cases in which that proprietor shows himself to be sufficiently vigilant by opposing the use, by other operators, of signs likely to infringe his or her mark (judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 42).
66The interests of a third party in using, in the course of trade, a sign identical with, or similar to, a trade mark with a reputation must be considered, in particular, in the light of the possibility for the user of that sign to claim ‘due cause’ (see, to that effect, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 43), which is an expression of the general objective referred to in paragraph 64 of the present judgment (see, to that effect, judgment of 30 May 2018, Tsujimoto v EUIPO, C‑85/16 P and C‑86/16 P, EU:C:2018:349, paragraph 90).
67It follows that the concept of ‘due cause’, within the meaning of Article 9(2)(c) of Regulation 2017/1001 and of Article 10(2)(c) of Directive 2015/2436 does not only include objectively overriding reasons but may also relate to the subjective interests of a third party using a sign which is identical with, or similar to, the trade mark with a reputation (judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 45).
68As regards, specifically, the question whether freedom of expression, which is guaranteed in Article 11(1) of the Charter, may come within the concept of ‘due cause’, within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436, the Court notes that neither that regulation nor that directive provides any clarity in that regard.
69However, both recital 21 of Regulation 2017/1001 and recital 27 of Directive 2015/2436 emphasise the need to apply that regulation and that directive, respectively, in such a way as to ensure full respect for fundamental rights and freedoms, in particular freedom of expression (see, to that effect, judgment of 27 February 2020, Constantin Film Produktion v EUIPO, C‑240/18 P, EU:C:2020:118, paragraph 56).
70In those circumstances, the Court holds that the rights of the proprietor of a trade mark, protected by Article 17(2) of the Charter, in particular the proprietor’s exclusive right to his trade mark with a reputation, may be limited by the need to protect the freedom of expression of a third party, enshrined in Article 11 of the Charter. Consequently, that freedom may, in principle, constitute due cause, within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436.
71In accordance with Article 52(3) of the Charter, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR. However, that provision does not prevent EU law from granting more extensive protection. It follows that, for the purposes of interpreting Article 11 of the Charter, the Court must take account of the corresponding rights guaranteed by Article 10 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraph 52 and the case-law cited).
72Under Article 11(1) of the Charter, everyone has the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
73Article 11(1), in so far as it refers to ‘everyone’, is to apply to legal persons and profit‑making companies engaged in commercial activities (see, to that effect, ECtHR, 8 July 2025, Google LLC and Others v. Russia, CE:ECHR:2025:0708JUD003702722, § 63).
74Article 11(1) guarantees, inter alia, the exchange of cultural, political and social information and ideas of all kinds which is essential for a democratic society (see, to that effect, ECtHR, 22 October 2007, Lindon, Otchakovsky-Laurens and July v. France, CE:ECHR:2007:1022JUD002127902, § 47). Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (ECtHR, 8 July 1986, Lingens v. Austria, CE:ECHR:1986:0708JUD000981582, § 41).
75However, although the rights and freedoms enshrined in Article 11 of the Charter constitute one of the essential foundations of a pluralist, democratic society, which is one of the values on which, in accordance with Article 2 TEU, the European Union is founded, they are not absolute rights either. Indeed, as can be seen from Article 52(1) of the Charter, that provision allows limitations to be placed on the exercise of those rights and freedoms, provided that (i) those limitations are provided for by law, (ii) they respect the essence of those rights and freedoms and (iii) in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. In that regard, the Court has held previously that interferences with the rights and freedoms guaranteed by Article 11 must be limited to what is strictly necessary (see, to that effect, judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraphs 47 to 49).
76Furthermore, as is apparent from the explanations relating to Article 11 of the Charter, which must be taken into account in interpreting Article 11, the limitations which may be imposed on the right to freedom of expression may not exceed those provided for in Article 10(2) ECHR, which corresponds to Article 11 of the Charter (judgment of 26 February 2026, Commission v Hungary (Right to provide media services in a radio frequency), C‑92/23, EU:C:2026:108, paragraph 361).
77In that regard, the Court notes that the concept of ‘due cause’, within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436, seeks to strike a balance between the rights and interests in question by taking into account, in the specific context of those provisions and in the light of the extended protection enjoyed by a trade mark with a reputation, not only the rights and interests of the proprietor of that mark but also those of the third party using a sign identical with, or similar to, that trade mark (see, to that effect, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 46).
78In that context, as the Advocate General observed, in essence, in point 107 of his Opinion, the mere reliance by the third party, who is using such a sign, on his or her right to freedom of expression is not sufficient to establish due cause within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436. If that were the case, the effectiveness of those provisions would be undermined and the concept of ‘due cause’ would be rendered meaningless, since any use by a third party of a sign identical with, or similar to, a trade mark with a reputation could thus be justified by that third party by relying on its freedom of expression, meaning that the need to ensure the fair balance which those provisions seek to establish would be disregarded.
79Therefore, a third party using a sign identical with, or similar to, a trade mark with a reputation must set out the specific grounds for that use in connection with the exercise of its freedom of expression and demonstrate that those grounds take precedence over the rights and interests of the proprietor of that trade mark.
Striking a balance between the rights and interests of the proprietor of the trade mark with a reputation and those of the third party using a sign identical with, or similar to, that trade mark
80When determining whether the use by a third party of a sign identical with, or similar to, the trade mark with a reputation results from due cause, the national court must strike a balance between, on the one hand, the right to property of the proprietor of that trade mark and his or her interests, in particular having regard to the functions of that trade mark which must be safeguarded, namely its essential function and its other functions referred to in paragraph 44 above, and, on the other hand, the right to freedom of expression relied on by the third party and the latter’s interests in using a sign identical with, or similar to, that trade mark, with neither of those two rights being absolute.
81In striking that balance, the national court must take account of all the relevant circumstances of the individual case.
82In that regard, it is apparent from the settled case-law of the European Court of Human Rights that, when striking a balance between conflicting fundamental rights enshrined in the ECHR, the salient question to be decided is the relative weight to be ascribed, in the light of the particular circumstances of the case, to each of those two rights, which are in principle entitled to equal respect. Striking such a balance requires an assessment of the comparative importance of the concrete aspects of those rights, the need to restrict, or to protect, each of them, and the proportionality between the means used and the aim sought to be achieved (see, to that effect, ECtHR, 15 October 2015, Perinçek v. Switzerland, CE:ECHR:2015:1015JUD002751008, § 228).
83In analysing the particular circumstances of the case in the main proceedings, the national court must take into consideration, in the first place, the intention of the third party using the sign identical with, or similar to, the trade mark with a reputation.
84In that regard, the national court must, in particular, verify that that use is not guided by the third party’s intention to infringe the trade mark with a reputation or its distinctive character, or by the sole objective of riding on the coat-tails of a trade mark with a reputation. As the Advocate General observed, in essence, in point 116 of his Opinion, the intention of a third party to achieve the outcome which Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436 seek to prohibit, namely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the EU trade mark, cannot constitute due cause.
85In addition, the national court must determine whether, more generally, the third party used the sign identical with, or similar to, a trade mark with a reputation in good faith. Use in bad faith cannot constitute healthy and fair competition or be classified as ‘due’.
86It follows that the use of a sign identical with, or similar to, a trade mark with a reputation by a third party who invokes his or her right to freedom of expression in order to justify that use must be driven by the objective of that third party to exercise that right in good faith. That is the case, in particular, where such a sign is used to convey an idea or opinion which relates to the mark with a reputation as such, the proprietor of that mark, his or her commercial practices, his or her goods or services or where such a sign is used to initiate or fuel a debate in the public interest or where it is necessary for other reasons, – such as the linguistic meaning of an element of that trade mark or the fact that it has become a public cultural reference or part of everyday language – for the exercise of that freedom in the given context.
87In the second place, when striking a balance between the right to property and freedom of expression, the national court must, on the one hand, take account of whether the use of the trade mark at issue contributes to a debate in the public interest. In that regard, Member States have a broad margin of discretion when regulating freedom of expression in the commercial sphere, it being understood that the scope of that discretion must be qualified where what is at stake is not an individual’s strictly ‘commercial’ expression but his or her participation in a debate concerning the public interest (see, to that effect, ECtHR, 10 January 2013, Ashby Donald and Others v. France, CE:ECHR:2013:0110JUD003676908, § 39). Exceptions to the freedom of expression are to be construed strictly, and Article 11 of the Charter leaves little scope for restrictions on freedom of expression in the fields of political speech and matters of public interest (see, to that effect, judgment of 4 October 2024, Real Madrid Club de Fútbol, C‑633/22, EU:C:2024:843, paragraph 53 and the case-law cited).
88Furthermore, in its case-law relating to the field of political speech and debate, the European Court of Human Rights also pays attention to the form of the expression and its potential satirical nature, emphasising that satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, is naturally intended to provoke and agitate, and that any interference with the right of an artist – or anyone else – to use this means of expression should be examined with particular care (ECtHR, 14 March 2013, Eon v. France, CE:ECHR:2013:0314JUD002611810, § 60), with parody being one of the forms of satire.
89Second, when striking a balance between the rights and interests in question, the national court must take account of the consequences which the use by the third party of a sign identical with, or similar to, a trade mark with a reputation may entail for the proprietor of that trade mark or for the substance itself of the exclusive rights conferred by the registration of that mark, in order to assess whether that use is proportionate to the seriousness of the interference with the rights and interests of the proprietor resulting therefrom.
90In that context, the Court notes that the claim by a third party that there is due cause for using a sign which is identical with, or similar to, a trade mark with a reputation cannot give rise to an acknowledgement that that third party has rights vis-à-vis a registered mark, but rather obliges the proprietor of the mark with a reputation to tolerate the use of the similar sign (see, to that effect, judgment of 30 May 2018, Tsujimoto v EUIPO, C‑85/16 P and C‑86/16 P, EU:C:2018:349, paragraph 91 and the case-law cited). Thus, in a situation in which the third party succeeds in demonstrating that it has due cause to use a sign identical with, or similar to, a trade mark with a reputation, the proprietor of that trade mark must accept that use and, accordingly, tolerate certain detriment resulting from at least one of the infringements referred to in Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436.
91However, that proprietor cannot be required to tolerate use which may cause it disproportionate detriment, or which would even be such as to affect adversely the substance itself of the exclusive rights conferred by the registration of that trade mark.
92In the context of the assessment that the national court must therefore carry out, relevant criteria include the intensity of the use by the third party of a sign identical with, or similar to, the trade mark with a reputation, the extent of that use and the methods chosen for that use, the scale of the reputation of that trade mark and the degree of similarity between that sign and that trade mark.
93Furthermore, another relevant criterion is the fact that use by the third party of a sign identical with, or similar to, a trade mark with a reputation may give the impression that the proprietor of that trade mark agrees with the political message conveyed or the political ideas promoted, or even supports them in some way, whereas the values advocated by that proprietor may be based on neutrality vis-à-vis any political party or are incompatible with that political message.
94In the present case, it should be noted that it is apparent from the order for reference that the word element of the IKEA trade marks is an acronym created by their proprietor from proper nouns. It is therefore not a word element with a semantic meaning that would justify the need for it to be used by a third party, in the course of trade, in relation to goods or services. Furthermore, it does not appear that those trade marks have become a public cultural reference or a part of the common language.
95It appears from that order for reference that the IKEA trade marks with a reputation were not used by Vrijheidsfonds to engage in or feed a debate concerning the proprietor of those trade marks or its goods or services; that remains something for the referring court to verify.
96However, it should be noted that the IKEA trade marks with a reputation were used by Vrijheidsfonds in the context of a debate on asylum and immigration policy. Furthermore, it is apparent from the wording of the question referred for a preliminary ruling that the referring court appears to take the view that that use constitutes a form of ‘political parody’. Nevertheless, even though a debate on asylum and immigration policy may be regarded as a debate in the public interest, it appears – subject to verification by the referring court – that that debate has no connection with the IKEA trade marks with a reputation as such, since the use of those trade marks in the context of that debate merely rides on the coat-tails of those trade marks.
97In any event, it should be noted that it is apparent from the order for reference that Vrijheidsfonds used signs which are highly similar to, or even identical with, the IKEA trade marks. According to the referring court, Vrijheidsfonds used several visual elements clearly referring to the IKEA trade marks, in a typography and colour palette similar to those used for the Benelux Inter IKEA semi-figurative trade mark. It did not therefore merely use the word element of that trade mark.
98In addition, it appears from the order for reference that that sign was used by Vrijheidsfonds not only once at a press conference, but that it was used repeatedly and was also disseminated on the internet, and thus in such a way as to reach an audience that was potentially unlimited. It is for the referring court to verify whether, as a result, a link was able to be made more readily in the mind of the public, in the broad sense, between the sign used by Vrijheidsfonds and the IKEA trade marks.
99In that context, the Court also points out that Inter IKEA argued at the hearing that the debate on asylum and immigration policy which gave rise to Vrijheidsfonds’s use runs counter to Inter IKEA’s political neutrality. As noted in paragraph 12 of the present judgment, it is apparent from the order for reference that, at the press conference, the speaker did indeed state that that plan did not refer to ‘Ingvar Kamprad Elmtaryd and Agunnaryd [which is] the true meaning of the acronym IKEA’. However, subject to verification by the referring court, it cannot be ruled out that that use could create the impression for the relevant public of the IKEA trade marks that the proprietor of those marks agreed with, or even supported in some way, the political message conveyed or the political ideas promoted.
100The present case concerns the use of signs which are highly similar to, or even identical with, the IKEA trade marks which, by reason of the intensity and extent of that use, and the methods selected therefor, may cause significant detriment to the repute of those marks and to the interests of their proprietor.
101In those circumstances, it does not appear that the use of the IKEA trade marks at issue in the main proceedings, by Vrijheidsfonds for the sole purpose of taking advantage of the reputation of those trade marks in order to reinforce its political message and increase its dissemination, takes precedence over the rights and interests of the proprietor of those trade marks and can therefore be classified as having due cause, within the meaning of Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) of Directive 2015/2436; that is, however, for the referring court to verify in the light of all the relevant circumstances of the present case, in particular those referred to in paragraphs 83 to 99 of the present judgment.
Article 10(6) of Directive 2015/2436
102As has been pointed out in paragraph 54 of the present judgment, should the referring court find that the IKEA trade marks at issue in the main proceedings were not used by Vrijheidsfonds in the course of trade and in relation to goods or services, it will have to examine that use, as regards the Benelux trade marks alone, in the light of the national provisions implementing Article 10(6), namely Article 2.20(2)(d) of the Benelux Convention.
103In that regard, it should be borne in mind that the option under Article 10(6) of Directive 2015/2436 for Member States to provide or maintain in their national law provisions relating to additional protection of national trade marks with a reputation against use by third parties for purposes other than that of distinguishing goods or services is subject to the condition that use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the national trade mark.
104Since the option of such protection, provided for in Article 10(6) of Directive 2015/2436, is therefore defined by reference to concepts which also appear in Article 10(2)(c) of that directive, such as, inter alia, the concept of ‘due cause’, they must be interpreted in the same way. It is therefore necessary to provide the referring court with clarification as to the scope of Article 10(6).
105In that regard, it follows in particular from paragraph 80 of the present judgment that, in order to assess whether there is due cause, within the meaning of Article 10(6) of Directive 2015/2436, where a third party uses a sign identical with, or similar to, a trade mark with a reputation to promote political opinions, the national court must strike a balance between two fundamental rights, namely the intellectual property right of the proprietor of that trade mark with a reputation and that third party’s right to freedom of expression.
106When striking that balance, the national court must take account of all the relevant circumstances of the individual case, which include those referred to in paragraphs 83 to 93 of the present judgment.
107The national court must take particular account of the fact that the exercise of freedom of expression based on the use by a third party of a sign that is outside of the commercial sphere may, according to the case-law of the European Court of Human Rights, benefit from broader protection than that of strictly ‘commercial’ expression (see, to that effect, ECtHR, 10 January 2013, Ashby Donald and Others v. France, CE:ECHR:2013:0110JUD003676908, § 39), such as in the context of Article 10(2)(c) of Directive 2015/2436 or Article 9(2)(c) of Regulation 2017/1001.
108Therefore, as a general rule, the result of that striking of a balance need not necessarily be the same as the outcome of the weighting carried out in the context of the latter provisions.
109However, in the present case, in the light of the circumstances referred to in paragraphs 94 to 100 of the present judgment, it does not appear that the fact that the use examined in the context of Article 10(6) of Directive 2015/2436 was for purposes other than that of distinguishing goods or services is such as to affect the finding set out in paragraph 107 of this judgment; nevertheless, that remains for the referring court to verify.
110In the light of all the foregoing considerations, the answer to the question referred is that Article 9(2)(c) of Regulation 2017/1001 and Article 10(2)(c) and (6) of Directive 2015/2436, read in conjunction with Article 11 and Article 17(2) of the Charter, must be interpreted as meaning that, where a third party uses a sign identical with, or similar to, a trade mark with a reputation, that third party’s freedom of expression, including the freedom to express political opinions and political parody, may constitute due cause, within the meaning of those provisions, provided that that freedom is found to take precedence, in the context of an assessment that strikes a balance between the rights at issue, over the exclusive rights of the proprietor of that trade mark. When striking that balance, the result of which need not necessarily be the same as the outcome of the weighting carried out in the context of, on the one hand, Article 10(2)(c) of Directive 2015/2436 or Article 9(2)(c) of Regulation 2017/1001 and, on the other hand, Article 10(6) of that directive, the national court must take account of all the relevant circumstances of the case, which include, inter alia:– the intention of the third party, with the use in question having to be driven by the objective of that third party to exercise his or her freedom of expression in good faith, which is the case, in particular, where such a sign is used to convey an idea or opinion which relates to the trade mark with a reputation as such, the proprietor of that trade mark, his or her commercial practices, his or her goods or services or where such a sign is used to initiate or fuel a debate in the public interest or where it is necessary for other reasons, such as the linguistic meaning of an element of that trade mark or the fact that it has become a public cultural reference or part of everyday language, for the exercise of that freedom in the given context;– whether the expression in question contributes to a public interest debate and whether or not that expression occurs in a strictly commercial context;– the consequences which the use by the third party of a sign identical with, or similar to, a trade mark with a reputation may entail for the proprietor of the trade mark with a reputation or for the substance itself of the exclusive rights conferred by the registration of that trade mark, having regard in particular to the intensity, extent and methods of that use, the scale of that trade mark’s reputation, the degree of similarity between the sign used and that trade mark and, where appropriate, the fact that that use may give the impression that that proprietor agrees with the political message conveyed or the political ideas promoted, or even supports them in some way, whereas its values are based on neutrality vis-à-vis any political party or are incompatible with that political message.
Costs
111Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Grand Chamber) hereby rules: 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 and Article 10(2)(c) and (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, read in conjunction with Article 11 and Article 17(2) of the Charter of Fundamental Rights of the European Union,must be interpreted as meaning that, where a third party uses a sign identical with, or similar to, a trade mark with a reputation, that third party’s freedom of expression, including the freedom to express political opinions and political parody, may constitute due cause, within the meaning of those provisions, provided that that freedom is found to take precedence, in the context of an assessment that strikes a balance between the rights at issue, over the exclusive rights of the proprietor of that trade mark. When striking that balance, the result of which need not necessarily be the same as the outcome of the weighting carried out in the context of, on the one hand, Article 10(2)(c) of Directive 2015/2436 or Article 9(2)(c) of Regulation 2017/1001 and, on the other hand, Article 10(6) of that directive, the national court must take account of all the relevant circumstances of the case, which include, inter alia:– the intention of the third party, with the use in question having to be driven by the objective of that third party to exercise his or her freedom of expression in good faith, which is the case, in particular, where such a sign is used to convey an idea or opinion which relates to the trade mark with a reputation as such, the proprietor of that trade mark, his or her commercial practices, his or her goods or services or where such a sign is used to initiate or fuel a debate in the public interest or where it is necessary for other reasons, such as the linguistic meaning of an element of that trade mark or the fact that it has become a public cultural reference or part of everyday language, for the exercise of that freedom in the given context;– whether the expression in question contributes to a public interest debate and whether or not that expression occurs in a strictly commercial context;– the consequences which the use by the third party of a sign identical with, or similar to, a trade mark with a reputation may entail for the proprietor of the trade mark with a reputation or for the substance itself of the exclusive rights conferred by the registration of that trade mark, having regard in particular to the intensity, extent and methods of that use, the scale of that trade mark’s reputation, the degree of similarity between the sign used and that trade mark and, where appropriate, the fact that that use may give the impression that that proprietor agrees with the political message conveyed or the political ideas promoted, or even supports them in some way, whereas its values are based on neutrality vis-à-vis any political party or are incompatible with that political message.
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