Is Political Campaign a Commercial Activity? – Some Remarks in Relation to the Inter IKEA Systems Case

On 8 September, the Court of Justice of the European Union issued one of its most awaited trade mark judgments of 2026. A Belgian political party (Vlaams Belang) used the trade mark of IKEA in its political campaign, as it considered that the coalition agreement concluded in Sweden (tackling also the issue of migration) could serve as a positive model for reforming refugee and migration policy in Belgium. Therefore, the party presented its political programme under the name “IKEA-PLAN”, where the abbreviation IKEA stood for “Immigratie Kan Echt Anders” (Immigration really can be different). The company IKEA brought trade mark infringement proceedings against two non-profit-making associations and their representatives before the (Dutch-speaking) Brussels Business Court. The Court noted that only one of the associations (namely Vrijheidsfonds) was responsible for conducting the campaign of Vlaams Belang, thus held the proceedings admissible only in its respect.

Later, the (Dutch-speaking) Brussels Business Court referred the matter to the Court of Justice of the European Union for preliminary ruling. The two questions referred by the Belgian Court were essentially the following: (i) “Can freedom of expression, including the freedom to express political opinions and political parody [...] constitute ‘due cause’ for using a sign identical or similar to a well-known trade mark […]?”, and (ii) “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 attached to each of them?”^[1]

Yet, from our perspective, the case raises far more consequential preliminary issues. First, one has to assess whether the use of a trade mark in the context of a political campaign can be classified as a commercial activity (as a use “in the course of trade”). Second, whether the trade mark, in this context, is used in relation to goods or services.^[2] If the use of the trade mark does not fall within the scope defined by the above questions, it is not covered by the area harmonised by EU law. Consequently, the Court of Justice cannot analyse whether the freedom of expression constitutes a “due cause”.

In his Opinion, Advocate General Szpunar also addressed these questions. First and foremost, he emphasised that “the fact that Vrijheidsfonds is a non-profit-making association is not decisive in determining whether it used the trade marks concerned in the course of trade”, since not seeking to make profit does not imply that the association’s “objective cannot be to create and, later, to preserve an outlet for the goods or services of that association in respect of which the trade mark was registered.”^[3] Accordingly, “a non-profit-making association may also make use of a sign in the course of trade where that sign is publicly used with a view to identifying and promoting its goods or services.”^[4] Next, AG Szpunar stressed that—although a political programme is not in itself a product or service—“where the use of a sign occurs in circumstances establishing a link with the goods or services of that entity, it is properly characterised as use ‘in relation to goods or services’.”^[5] For example, the use of the sign in relation to services associated with organising events (such as a political rally) or distributing objects with the given sign can constitute use “in relation to goods or services.”^[6] Based on these arguments, as an attempt to avoid a definitive answer, he concluded that it is a task of the referring court to determine whether the given association “has used signs identical with, or similar to, the well-known trade marks ‘in the course of trade’ and ‘in relation to goods or services’.”^[7]

The Court of Justice relied heavily on the above arguments of the Advocate General. At the outset, it stressed that it is not clear from the reference of the (Dutch-speaking) Brussels Business Court whether the IKEA trade mark was indeed used in the course of trade and in relation to goods or services.^[8] It is mainly for the referring court to carry out this assessment, however, the Court of Justice may provide information on the interpretation of EU law.^[9] Moreover, the referring court has to verify if Vrijheidsfonds, as a non-profit-making association, is pursuing an economic activity. Although in its written observations the association argued that the use of the IKEA trade mark “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 it specified that “the use did not come within the private sphere, but within the course of trade.”^[10]

In connection with the question of whether the IKEA trade mark was used in relation to goods or services, the Court of Justice underlined that the promotion of a political programme cannot be considered itself a good or a service, however, “certain uses of a trade mark in connection with organisation of political meetings or the promotion of such a programme […] may be regarded as having been undertaken in relation to goods or services.”^[11] In this regard, the Court of Justice referred to the examples pointed out by AG Szpunar.

In conclusion, the Court of Justice emphasised that it is for the referring court to assess whether the use of the IKEA trade mark occurred in the course of trade and in relation to goods or services. Therefore, the referring court has to determine the applicable legal framework, which could be either the Benelux Convention on Intellectual Property or EU law.^[12]

As a response to the actual questions posed by the referring court for preliminary ruling, the Court of Justice concluded that “freedom of expression, including the freedom to express political opinions and political parody, may constitute due cause […] 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 rights of the proprietor of that trade mark.”^[13] Moreover, the Court of Justice indicated some aspects that have to be taken into consideration by the national courts when carrying out such an assessment (e.g., “the intention of the third party”, “whether the expression in question contributes to a public interest debate”).^[14]

Despite these theoretical answers, we deem that the Court of Justice could have scrutinised in more depth the legal nature of political campaigns. The Court has stressed in its previous case law that “a trade mark is put to genuine use where a non-profit-making association uses the trade mark, in its relation with the public, in announcements of forthcoming events, on business papers and on advertising material and where the association’s members wear badges featuring that trade mark when collecting and distributing donations.”^[15] Nevertheless, the specific objectives and social role of political parties must also be taken into account in the present case. The immediate objective of political parties is to gain power and, through this, to implement their political programme.^[16] Therefore, political parties play a significant role in transferring power from the citizens to state institutions, and in mediating between the government and those who are governed.^[17] Similarly, they are responsible for the political education of society.^[18] After all, one might venture to note that the primary ambition of political parties is not to distribute objects or organise events.

Likewise, in our view, one can draw significant differences between political campaigns and advertising. Unlike the latter, the aim of a campaign is not to sell goods or services for a profit, but to promote ideas, values and political solutions. Another question yet to be examined is to what extent a political campaign serves to create a market for the “services” of the party. Additionally, although the Nice Agreement lists the organisation of political gatherings among services,^[19] this is irrelevant in the present case. One has to clearly separate the use of a trade mark in connection with the organisation of a political gathering from the use of the trade mark at the gathering itself. The Court of Justice should have emphasised these circumstances more explicitly in its reasoning (especially since, as we have indicated above, Vrijheidsfonds itself was self-contradictory in this respect), as, in our understanding, the absence of such clarifications may give rise to future misinterpretations.

^[1] Judgment of the Court of Justice of the European Union in Case C-298/23 Inter IKEA Systems BV, point 28.

^[2] These questions were identified by Advocate General Szpunar in his Opinion (see, Opinion of Advocate General Szpunar in Case C-298/23, point 48.) and follow directly from Article 10(2)(c) of Directive 2015/2436 of the European Parliament and of the Council to approximate the laws of the Member States relating to trade marks, and Article 9(2)(c) of Regulation 2017/1001 of the European Parliament and of the Council on the European Union trade mark.

^[3] Opinion of Advocate General Szpunar in Case C-298/23, points 52 and 55.

^[4] Ibid., point 58.

^[5] Ibid., point 76.

^[6] Ibid.

^[7] Ibid., point 77.

^[8] Judgment of the Court of Justice of the European Union in Case C-298/23 Inter IKEA Systems BV, point 48.

^[9] Ibid., point 49.

^[10] Ibid., point 50.

^[11] Ibid., point 53.

^[12] Ibid., points 54–55.

^[13] Ibid., point 111.

^[14] Ibid.

^[15] Judgment of the Court of Justice of the European Union in Case C-442/07 Verein Radetzky-Orden v Bundesvereingigung Kameradschaft “Feldmarschall Radetzky”, point 24.

^[16] Domșa, 2024, p. 91.

^[17] Domșa, 2024, p. 91.

^[18] Domșa, 2024, p. 97.

^[19] See the Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks.

References

Domșa, A. (2024) ‘Rolul partidelor politice într-un sistem democratic’, Pandectele Române, 2024(1), pp. 89–122.