Referral C-298/23 (Inter IKEA Systems, 8 May 2023)

Can freedom of expression, including the freedom to express political opinions and political parody, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 11 of the Charter of Fundamental Rights of the European Union, 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 (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark as well as Article 10(2)(c) and Article 10(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?
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:
o the extent to which the expression has a commercial character or purpose;
o the extent to which competitive motives are at play between parties;
o the extent to which the expression has a public interest, is socially relevant or opens a debate;
o the relationship between the above criteria;
o the degree of reputation of the trade mark invoked;
o the extent of the infringing use, its intensity and systematic nature and the extent of its distribution, 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;
o 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’);
o 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?