Short Summary
This appeal concerned an order for security for costs and the disposal of an action that had become devoid of purpose. Ballinno B.V., the proprietor of European patent EP 1 944 067 relating to a method and system for detecting an offside situation, had applied for provisional measures against the Kinexon companies and UEFA before the Hamburg Local Division. After withdrawing its requests for provisional measures on appeal, the Court of Appeal held that the action had become devoid of purpose and disposed of it pursuant to R. 360 RoP, treating Ballinno as the unsuccessful party at both instances.
Detailed Summary
Ballinno B.V., a company based in Obdam, The Netherlands, was the proprietor of European patent EP 1 944 067, entitled "Method and system for detecting an offside situation." Ballinno applied for provisional measures—including injunctions, seizure of goods, and penalties—before the Court of First Instance (CFI), Hamburg Local Division, against Kinexon Sports & Media GmbH, Kinexon GmbH (jointly the Kinexon companies), and the Union des Associations Européennes de Football (UEFA). The respondents were represented by Prof. Dr. Tilman Müller-Stoy of Bardehle Pagenberg, while Ballinno was represented by attorney-at-law Rien Broekstra of Vossius & Brinkhof.
The Kinexon companies and UEFA requested an order requiring Ballinno to provide security for costs. The Local Division ordered Ballinno to provide security for the legal costs of the defendants in the total amount of €56,000, by deposit or bank guarantee, in an order dated 14 May 2024 (the security order). According to the Local Division's findings, the undisputed facts indicated a risk of insolvency of Ballinno with respect to reimbursement of the costs of proceedings. The Local Division noted that the patent in suit had been only recently assigned to Ballinno, and that the transfer was performed months after the assignor had entered into pre-trial correspondence about a possible patent infringement with two of the defendants. This raised concerns that the purpose of the transfer might be to facilitate litigation without any financial risk to Ballinno. The patent was transferred on 22 January 2024, shortly before Ballinno initiated proceedings on 18 April 2024. The Local Division weighed the interests of the defendants higher than those of Ballinno.
& Analysis
On appeal, Ballinno withdrew its requests for provisional measures (injunctions, seizure of goods, and penalties). The Court of Appeal determined that, as a result of this withdrawal, the action had become devoid of purpose so that there was no longer any need to adjudicate on it. The Court of Appeal held that it could dispose of the action pursuant to R. 360 RoP. The Court further held that it was not necessary to examine the merits of the case in order to determine which party was the successful party. Ballinno was considered the unsuccessful party at both instances.
Final Order & Ruling
The Court of Appeal disposed of the action pursuant to R. 360 RoP, as the action had become devoid of purpose following Ballinno's withdrawal of its requests for provisional measures on appeal. Ballinno was treated as the unsuccessful party at both the first instance and on appeal. The order was issued by Panel 2, comprising presiding judge Rian Kalden, judge-rapporteur Ingeborg Simonsson, Patricia Rombach, Guillaume Faget, and Elisabetta Papa, following an oral hearing on 24 February 2025.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Ballinno B.V. vs Kinexon GmbH, Kinexon Sports & Media GmbH, Union des Associations Européennes de Football (UEFA) is valuable context for structuring arguments or assessing risk in similar proceedings.
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