Rule 355 – Decision by default (Court of First Instance)

1. Upon request a decision by default may be given against a party where:
(a) the Rules of Procedure so provide if a party fails to take a step within the time limit foreseen in these Rules or set by the Court; or

(b) without prejudice to Rules 116 and 117, the party which was duly summoned fails to appear at an oral hearing.

2. A decision by default against the defendant of the claim or counterclaim may only be given where the facts put forward by the claimant justify the remedy sought and the procedural conduct of the defendant does not preclude to give such decision.

3. A decision by default against the defendant of the claim or counterclaim may only be given where the time limits for the defence to the claim or counterclaim have expired and thus, it is established that the service of the claim or counterclaim was effected in sufficient time to enable the defendant to enter a defence.

4. A decision by default shall be enforceable. The Court may, however:

(a) grant a stay of enforcement until it has given its decision on any Application under Rule 356; or

(b) make enforcement subject to the provision of security; this security shall be released if no Application is made or if the Application fails.

Case Law:

IPPT20240221, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Claimants’ requests for a decision by default against the defendants in the main proceedings pursuant to Rule 355 (1)(a), 277 RoP and for a rejection of the Counterclaims for revocation is rejected. Time limits for filing the Statement of defence and the Counterclaim for revocation extended to 7 February 2024, as it was not possible to upload the Counterclaim for revocation on 6 February 2024 for internal technical reasons (Rule 9(3) RoP, Rule 25(1) RoP). Although the Statement of defence shall include a Counterclaim for revocation, the parties shall make use of the official forms available online (Rule 4(1) RoP). In practice, this means that the Counterclaim for revocation must also be filed in the workflow provided for this purpose by the CMS. Only when this requirement has been met is the Counterclaim for revocation properly filed. Where the defendant has filed a Statement of defence in due time in accordance with the requirements of Rule 25.1 RoP, the time limit for filing the Counterclaim for revocation in the dedicated workflow of the CMS may be extended retrospectively upon request (Rule 9.3 (a) RoP) and subject to the following conditions: Firstly, the defendant must have already made a first attempt to file the Counterclaim for revocation in due time in the workflow provided for this purpose before the expiry of the time limit. Secondly, the defendant must have uploaded the Counterclaim for revocation to the correct workflow without culpable delay after the expiry of the deadline.

IPPT20240226, UPC CoA, Nanostring v 10x Genomics II

A distinction must be made between the formal requirements of Rule 206(2)(a) RoP (checked by the Registry) and the substantive requirements of Rule 206(2)(b) to (e) RoP (checked by the court). Formal requirements shall be examined by the Registry as soon as possible (Rule 208(1) RoP, Rule 16(2) RoP). If deficiencies are not corrected within 14 days a decision by default may be issued (Rule 16(5) RoP, Rule 355(1)(a) RoP).