UPC CFI LD Lissabon, 15 October 2024: Provisional measures dismissed: no temporal urgency proven

02-12-2024 Print this page
Auteur:
Mzolisi Mtshaulana
IPPT20241015, UPC CFI, LD Lisbon, Ericsson v Asustek

Application for provisional measures dismissed (Article 62 UPCA, R. 211 RoP). 

 

The allegation that no acts of infringement at all were committed is irrelevant in the assessment of territorial competence (Article 33(1)(a) UPCA) because it does not challenge the territorial connection to the Local or Regional Division. It should be considered as a defence based on the merits. 

Art. 33(1)(a) UPCA applies regardless of whether the defendant is an infringer or an intermediary. 

 

Temporal urgency (R. 211(4) RoP): The burden of proving urgency and due diligence in initiating proceedings is not satisfied if the Applicant fails to provide the Court with the exact date when it became aware of the infringement, particularly when the Court has no other factual or objective temporal indication beyond the date the infringement commenced

 

An auxiliary request to amend a patent claim in provisional measures is incompatible with the nature of such proceedings (Article 62 UPCA, R. 211. RoP). 

 

Requirements for preliminary injunctions (R. 211 RoP) are cumulative. The cumulative nature of the previously mentioned requirements allows the Court not to address all the requirements if one is not satisfied. […] In such cases, the Court may exercise discretion in assessing the other requirements presented by the parties. 

 

Owning the domain www.asus.com is infringing (Article 25(a) UPCA) as it is evident that through this domain and its sub-domains, products containing the accused Modules are offered and sold.

 

IPPT20241015, UPC CFI, LD Lisbon, Ericsson v Asustek