Short Summary
The Court of Appeal of the Unified Patent Court dismissed Black Sheep Retail Products B.V.'s (BSRP) application for suspensive effect against an information order issued by the Hague Local Division in infringement proceedings brought by HL Display AB concerning EP 2 432 351. The Court of Appeal held that BSRP failed to demonstrate exceptional circumstances warranting suspension, as information orders are necessary to ensure a high level of patent protection and BSRP had not shown manifest error or that the appeal would be devoid of purpose.
Detailed Summary
This case concerns an application for suspensive effect under Rule 223 RoP filed by Black Sheep Retail Products B.V. (BSRP) against an order of the Hague Local Division of the Unified Patent Court dated 10 October 2025, in infringement action UPC_CFI_386/2024 and counterclaim for revocation UPC_CFI_610/2024.
HL Display AB brought an infringement action against BSRP regarding European patent EP 2 432 351. BSRP filed a counterclaim for revocation. In its decision on the merits of 10 October 2025, the Hague Local Division found the patent valid and infringed, and ordered BSRP (under measure IV of the operative part) to communicate to HL Display, within three weeks of service, detailed information including: (a) the origin and distribution channels of infringing products; (b) quantities produced, manufactured, delivered, received or ordered, and prices paid; (c) the identity of any third person involved in production or distribution; (d) the number and dates of products offered; (e) advertising carried out; and (f) costs and profits realised, all substantiated by supporting documents. HL Display subsequently filed a Rule 118.8 RoP application on 16 October 2025 seeking enforcement of this order.
BSRP's Appeal and Requests: BSRP appealed the decision and requested suspensive effect against measure IV, alternatively against measures IV.a and IV.c, or alternatively against measure IV insofar as it pertains to the period between 27 June 2018 and 19 June 2024, or more alternatively against measures IV.d to IV.f.
BSRP's Arguments: BSRP argued that (1) HL Display never made a reasoned request under Rule 191 RoP, and the information was not reasonably necessary for calculating damages; (2) it was inconceivable how origin/distribution channels and identity of third parties could contribute to damages calculation; (3) categories d-f had no basis in Article 67 UPCA; (4) the appeal would become devoid of purpose without suspensive effect since disclosed information cannot be 'uncommunicated' and BSRP could not be properly compensated; (5) compliance would cause serious and irreparable harm as the information constituted highly confidential business information; and (6) damages should be counted from the warning letter dated 19 June 2024, not from the date of patent grant.
Court's Reasoning: The Court of Appeal, applying Article 74(1) UPCA, noted that an appeal has no suspensive effect unless the Court of Appeal decides otherwise at the motivated request of a party. An exception may apply if the appealed order is manifestly wrong or if the appeal without suspensive effect becomes devoid of purpose. The Court held that an information order is intended to enable the patent proprietor to calculate damages, and information regarding origin, distribution channels, and identity of third parties allows the patent proprietor to take appropriate action to prevent further infringements. Communication of information belongs to measures necessary to ensure a high level of protection, and enforcement may be suspended only under exceptional circumstances, which BSRP had not established. The Court further noted that if BSRP could reasonably foresee that disclosure of confidential information might be required, it should have raised confidentiality issues during the merits proceedings; a mere procedural reservation was insufficient. Finally, the Court held that whether the information order was correct in substance would be decided in the appeal decision, and BSRP had failed to demonstrate manifest error or that the risks would render the appeal devoid of purpose.
The Court of Appeal rejected BSRP's application for suspensive effect in its entirety, issuing the order on 6 November 2025.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Black Sheep Retail Products B.V. vs HL Display AB is valuable context for structuring arguments or assessing risk in similar proceedings.
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