Publicaties

This article offers a comprehensive exploration of the evolving interface between trademark law and freedom of political expression in Europe, using the CJEU case IKEA v. Vlaams Belang as a focal but not exhaustive case study. It argues that the dispute exemplifies a much broader and increasingly urgent structural question: how EU trademark law – especially in its protection of reputed marks – can be reconciled with the constitutional commitments to political speech, artistic creativity, and democratic participation embedded in Article 10 of the European Convention on Human Rights (ECHR) and Article 11 of the EU Charter. Against a backdrop of the expanding preliminary infringement criteria of “use in the course of trade” and “use in relation to goods or services”, as well as the uniquely far-reaching Benelux “super anti-dilution” regime, the article demonstrates that “due cause” has become the principal doctrinal locus for internalising freedom-of-expression concerns within trademark law. Drawing on Strasbourg jurisprudence, it develops a holistic framework for a free-speech-conforming interpretation of “due cause”, analysing both the criteria suggested by the Belgian referring court and additional factors central to the European Court of Human Rights’ proportionality review, including commerciality, the value of political speech and artistic expression, the reputation of the mark and the power of corporate symbols, availability of alternatives, tolerance for offensive expression, the limits imposed by hate speech, and the compelled speech doctrine. The article concludes that failing to interpret “due cause” in a speech-sensitive way would risk enabling trademark rights to override core democratic freedoms.