Short Summary
This is an Order of the Court of Appeal concerning an Application for provisional measures under Rule 206 RoP. The Court addressed issues of competence of local divisions, urgency, and interim award of costs in provisional measures proceedings. The Order establishes that Rule 19.5 RoP applies mutatis mutandis to provisional measures proceedings, that there is no hierarchy between the competence grounds in Art. 33(1)(a) and Art. 33(1)(b) UPCA, and that competence assessment should be cursory rather than comprehensive. The Court also held that an interim award of costs up to half of the applicable ceiling is generally appropriate in provisional measures proceedings.
Detailed Summary
This Order was issued by the Court of Appeal on 28 November 2025 in proceedings concerning an Application for provisional measures under Rule 206 RoP. The case identifiers are UPC_CoA_317/2025 (APL_16185/2025) for the appeal and UPC_CoA_376/2025 (APL_19989/2025) for the cross-appeal. The full names of the appellant, respondent in the cross-appeal, and applicant are truncated in the provided text and cannot be identified.
The proceedings raised several procedural and substantive issues. First, the question of whether Rule 19.5 RoP (regarding referrals to the competent division) applies mutatis mutandis to proceedings for provisional measures. Second, the competence of the local division seised was contested, with the defendant raising a defence based on Art. 33 UPCA. Third, the question of urgency under Rule 211.4 RoP was addressed, including whether potential changes of products on the market justify a delay. Fourth, the Court considered the appropriateness of an interim award of costs in provisional measures proceedings.
& Analysis: The Court of Appeal held that for reasons of efficiency (referencing the RoP preamble 4) and given the urgency of interim measures applications, Rule 19.5 RoP applies mutatis mutandis to provisional measures proceedings, allowing referral to the competent division. If the division seised considers a competence defence well-founded and the applicant indicated another competent division, it shall refer the application to that division. The Court clarified that competence of divisions under Art. 33 UPCA is a UPC internal matter, not governed by the Brussels I Recast Regulation. There is no hierarchy between the competence grounds in Art. 33(1)(a) (place of actual or threatened infringement) and Art. 33(1)(b) (residence or principal place of business of the defendant). The Court further held that there is no need to look for connecting factors in the territory of the local division for each defendant; under Art. 33(1)(a), it suffices to establish the existence of infringing activities such as an offer or the possibility to obtain the allegedly infringing devices through a website accessible in the Contracting Member State. The competence assessment should be cursory rather than a comprehensive evaluation of evidence, to avoid anticipating the outcome. Regarding urgency, the Court held that potential changes of products on the market do not, as a rule, justify a delay under Rule 211.4 RoP. On costs, the Court held that an interim award of costs may also be ordered in favour of the defendant in provisional measures proceedings, and that there will often be reasons to allow the successful party an interim award of costs. The Court noted that an interim costs award up to the applicable ceiling effectively makes the subsequent cost decision procedure under Rule 150 et seq RoP largely redundant, and considered that an interim costs award of up to half of the ceiling is generally more appropriate, though a different consideration may apply if parties have submitted and discussed cost specifications.
Final Order & Ruling: The Court of Appeal issued an Order on 28 November 2025 addressing the application for provisional measures, the competence issues, urgency, and the interim award of costs. The specific operative provisions of the Order are not fully detailed in the truncated text provided.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Brussels (BE) Local Division. Understanding the court's reasoning in YEALINK (XIAMEN) NETWORK TECHNOLOGY Co. Ltd. YEALINK (EUROPE) NETWORK TECHNOLOGY BV vs BARCO NV is valuable context for structuring arguments or assessing risk in similar proceedings.
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