Freedom of expression—a relevant factor for ‘due cause’ (IKEA v Vrijheidsfonds)
IP analysis: IKEA’s trade marks were used within a political presentation. Questions were referred to the Court of Justice regarding whether ‘due cause’ can be used to reconcile the fundamental rights to property and freedom of expression and, if so, what are the relevant factors and their respective weights. A party with ‘due cause’ will not be liable for infringing a trade mark with a reputation even where that use takes unfair advantage, or is detrimental to, the distinctive character or repute of the mark. Advocate General Szpunar explains that freedom of expression can come into play to demonstrate ‘due cause’. However, to succeed on this argument, the use of the reputed mark will need to be aimed at furthering a debate of public interest, rather than merely seeking to exploit the mark’s reputation to disseminate more broadly materials relating to that debate and/or promote the author of those materials more widely. Written by Robert Dickens, associate at White & Case.