Short Summary
This appeal concerned patent EP 2 432 351, where the Local Division the Hague had found Black Sheep Retail Products B.V. infringed the patent and dismissed Black Sheep's counterclaim for revocation. Black Sheep appealed, but subsequently filed a withdrawal of the appeal proceedings under Rule 265(1) RoP, with HL Display's consent. The Court of Appeal permitted the withdrawal and ordered a 50% reimbursement of court fees to Black Sheep under the amended Rule 370.9 RoP applicable to applications filed after 1 January 2026.
Detailed Summary
HL Display AB brought an infringement action against Black Sheep Retail Products B.V. before the Local Division the Hague regarding European patent EP 2 432 351 (case UPC_CFI_386/2024). In response, Black Sheep filed a declaration of non-infringement and a counterclaim for revocation (UPC_CFI_610/2024). On 10 October 2025, the Local Division the Hague issued its impugned decision, finding that Black Sheep had infringed the patent at issue, issuing an injunction and corrective measures, dismissing the counterclaim for revocation, and declaring the counterclaim for a declaration of non-infringement inadmissible. The Court of First Instance also ordered Black Sheep to pay HL Display reasonable and proportionate legal costs and expenses of EUR 56,000.
On 29 October 2025, Black Sheep lodged an appeal against this decision. Due to pending settlement discussions, the parties jointly requested a stay of the proceedings. By order of 14 January 2026, the Court of Appeal ordered a stay of three months.
On 25 February 2026, Black Sheep filed a withdrawal of the appeal proceedings pursuant to Rule 265(1) RoP, indicating that no decision on costs was requested and that HL Display had consented to the withdrawal. On the same day, Black Sheep filed an application for reimbursement of 60% of court fees pursuant to R. 370(9)(b)(i) RoP. On 2 March 2026, HL Display filed comments confirming its agreement with the withdrawal and not requesting a decision on costs.
The Court of Appeal addressed three issues: (1) whether to permit the withdrawal, (2) costs, and (3) reimbursement of court fees. On the first issue, the Court noted that under R.265.1 RoP, a claimant may apply to withdraw an action, and the Court shall decide after hearing the other party. The withdrawal shall not be permitted if the other party has a legitimate interest in a decision. Since HL Display consented to the withdrawal, the Court permitted it. On costs, the Court noted that R. 265.2(c) RoP requires a cost decision, but since neither party requested one before the Court of Appeal, no cost decision was necessary.
On the reimbursement of court fees, the Court examined the applicable rule. The old R. 370.9(b)(i) RoP (in force until 31 December 2025) provided for a 60% refund upon withdrawal before the closure of the written procedure. However, amendments to R. 370.9 RoP entered into force on 1 January 2026, applying to actions and applications filed after 31 December 2025. Under the amended provision, the reimbursement rate was reduced to 50% for withdrawals before the closure of the written procedure. Since Black Sheep's application was filed after 1 January 2026, the new provision applied. The Court found that the withdrawal was made before the lodging of the Statement of response, i.e., before the closure of the written procedure, and therefore ordered a 50% reimbursement of the appeal court fees to Black Sheep.
The Court of Appeal ordered: (1) the withdrawal of the appeal is permitted and the proceedings are declared closed; (2) the decision shall be entered on the Register; and (3) 50% of the appeal court fees shall be reimbursed to Black Sheep.
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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