Key takeaways
A defendant addressed by an injunction must control third parties and platforms used to market the attacked product, to ensure compliance with the order (Art. 82(4) UPCA, R. 354 RoP).
Where a defendant assigns tasks to third parties to fulfil an injunction, or provides content to a third-party marketing platform, it remains responsible for ensuring that neither results in non-compliance. Delegation of operational tasks does not remove the defendant’s own duty of oversight.
Geo-blocking the purchase function alone does not ensure compliance, since offering and placing on the market are independent infringing acts under Art. 25 UPCA.
A defendant that only blocks the ability to complete a purchase from a prohibited territory may still be in breach if the product continues to be presented in a way inviting offers (“invitatio ad offerendum”) from that territory.
The absence of proven sales or commercial harm does not reduce penalties, since penalties serve a punitive function and are payable to the Court, not as compensation.
An accurate disclaimer on the availability of the attacked product in prohibited territories can suffice for compliance, but only if nothing else on the site could reasonably be read as an offer there.
Language, technical accessibility (e.g. absence of geo-blocking of the display itself) and follow-up communications with potential buyers (such as confirming European availability without excluding injunction territories) can override an otherwise accurate disclaimer.
The burden of proving full and timely compliance with a penalty-reinforced order lies with the defendant, as the relevant facts lie within its own sphere.
Division
Court of Appeal (appeal against an order of the Local Division Hamburg)
UPC number
UPC_CoA_87/2026
Type of proceedings
Appeal against an order on forfeiture of penalties (Art. 82(4) UPCA, R. 354.4 RoP)
Parties
Appellants (Defendants in the CFI proceedings): Lepu Medical Technology (Beijing) Co., Ltd; Lepu Medical (Europe) Cooperatief U.A.
vs.
Respondent (Applicant in the CFI proceedings): Occlutech GmbH
Patent(s)
EP 2 387 951
Jurisdictions
UPC (territories concerned by the underlying provisional injunction: Germany, France, Italy, the Netherlands and Ireland)
Body of legislation / Rules
Art. 82(4) UPCA, R. 354.3 RoP, R. 354.4 RoP, Art. 25 UPCA, Art. 25(a) UPCA, Art. 34 UPCA, Art. 76 UPCA, R. 118.8 RoP, R. 211.5 RoP
