December 2025 The interplay between human rights and intellectual property, and the question of whether the exclusive rights conferred by registering IP can be used to restrict a third party’s right to freedom of expression, have been raised in several cases. In a recent opinion, the CJEU’s Advocate General has suggested there is a balance to be struck, rather than one right being more important than the other.
Background
For a democracy to function, it is essential that every politician standing for office can voice their opinion and that every political party hoping to form the next government can promote their agenda. This cornerstone of democratic society, encompassed by the right to “freedom of expression”, is protected by Article 10 of the European Convention on Human Rights and, across the European Union, by Article 11 of the Charter of Fundamental Rights.
Nonetheless, a delicate balance has to be struck between ensuring this fundamental right is protected and safeguarding the rights of trade mark owners to prevent third parties from using their trade marks without their consent. This is, of course, no easy task, as indicated by the Brussels Enterprise Court’s decision to refer to the Court of Justice of the European Union (“CJEU”) the question of where the line should be drawn (as case C-298/23).
In the case under referral, a Belgian political party named “Vlaams Belang” had published a policy document titled “Immigratie Kan Echt Anders” setting out its plans for reforming Belgian immigration and asylum law. To help promote its policies, Vlaams Belang presented the document in the form of an instruction manual and labelled the document the “IKEA-PLAN” in view of the policy’s name. This label was emblazoned in blue and yellow across the document’s cover page.
Vlaams Belang’s decision to present its policies in this manner did not go down well with the well-known DIY furniture supplier, IKEA, who initiated court proceedings in Belgium, alleging infringement of several of their trade marks.
The Belgian court noted the requirement to balance IKEA’s right to prevent third parties from using its trade marks without consent against Vlaams Belang’s right to freedom of expression, and asked the CJEU to clarify whether its right to freely express itself gave Vlaams Belang “due cause” to use IKEA’s marks under Article 9(2)(c) of the EU Trade Mark Regulation No. 2017/1001 and Article 10(2)(c) of the EU Trade Mark Directive No. 2015/2436, in which case there would be no infringement.
Whilst the final decision of the CJEU has not yet been issued, the Advocate General has recently issued an opinion on the matter, which will help set the scene for the remainder of these proceedings.
The Advocate General’s Opinion
In their opinion, the Advocate General noted the requirement for the alleged infringer to be using the trade mark “in the course of trade” for there to be infringement, and held it to be a matter of settled case law that this means the trade mark must be used “in the context of commercial activity with a view to economic advantage”. The Advocate General noted that political parties do not typically seek to make profit, but indicated this is not a barrier to considering a political party as having used a trade mark in the course of trade (especially since, in the present case, “the Belgian Parliament makes grants to political parties based on their election results”, meaning there would be an economic benefit to Vlaams Belang if use of IKEA’s trade marks were to help them promote their agenda and thus secure more votes from the electorate).
The Advocate General also noted that Vlaams Belang was not using IKEA’s trade marks to start a debate about IKEA’s goods and services, but rather to promote its own political agenda. In the Advocate General’s opinion, this meant Vlaams Belang was trying to ride in the wake of trade marks with reputation to promote its own interests without any other valid justification for using those trade marks, and thus that Vlaams Belang did not have the “due cause” required to avoid infringement.
Thus, the opinion of the Advocate General appears to be that Vlaams Belang should be held liable for infringement of IKEA’s trade marks.
Conclusions
This opinion of the Advocate General sends an important message across Europe to both political parties and businesses alike. Specifically, the opinion suggests that if it is possible to promote a message via alternative means, then using a registered trade mark to stop someone using that mark to promote that message does not violate that person’s right to freedom of expression. The two rights are thus not mutually exclusive.
The Advocate General’s opinion is not final, and we now await a decision from the CJEU on the matter. Nonetheless, the opinion provides helpful insight into the approach likely to be taken by the European Union to balancing the rights of trade mark owners against the right to freedom of expression in the future.
