ACT_459767/2023

Direct infringement of EP 3 375 337 B1 (bathroom basin technology) by Bette GmbH & Co. KG in the relevant UPC member states

Note: Düsseldorf Local Division found direct infringement; injunction, recall, removal from distribution channels, and EUR 10,000 provisional damages awarded.

Prior use right under Art. 28 UPCA must be established separately for each UPCA member state based on the national law of that state

Note: Court accepted that the prior use right is country-by-country and Bette failed to adequately plead it for each protected state.

The right to information under Art. 68 UPCA in combination with R. 191 RoP includes the right to request information about cost factors relied upon by defendant in calculating profits, as well as supporting documents (invoices or delivery notes)

Permanent removal from distribution channels is a distinct and separate measure from recall

Note: Court confirmed these are separate, flanking measures; removal is conditional on the infringer having the actual and legal means to effect it.

Prior use right defense under Art. 28 UPCA

Reason: Defendant failed to adequately plead the prior use right country-by-country as required; the right under Art. 28 UPCA is governed by the national law of each protected member state and must be established separately for each.

Right to inspection of books (Offenlegung der Bücher) in the infringement proceedings

Reason: Court held that inspection of books under Art. 68 UPCA / R. 131.1(c) / R. 141 RoP is part of the damages quantification procedure and cannot be ordered in the main infringement proceedings; it is only applicable after a damages declaration.

Retrospective extension of time limit for procedural submissions

Reason: Request for retrospective time extension must be made no later than at the same time as the submission for which it is sought; a subsequent retrospective request has no prospect of success.