CoA, September 3, 2026, Order concerning an application for the preservation of evidence and inspection (R. 192 RoP), UPC_CoA_113/2026

headnote 1: “The scope of application of Art. 60 UPCA is not limited to technical documentation. It may also encompass evidence of alleged acts of infringement contained in Proportional and commercial documentation.”

In mn. 19, the Court finds that its power under Art. 60 UPCA is not limited “to technical evidence, i.e. evidence concerning the technical details of the defendant’s product or process. The scope of application of Art. 60 UPCA is not limited to technical documentation. It may also encompass evidence of alleged acts of infringement contained in promotional and commercial documentation. This follows from the wording of Art. 60(1) UPCA, which makes clear that orders for the preservation of evidence may cover any “relevant evidence in respect of the alleged infringement”. In addition, R. 196.1(d) RoP expressly allows the Court to order the preservation of “digital media and data”, without any limitation to technical documentation. This broad scope is also in line with the objective of the provision, which is to ensure effective means of preserving evidence of alleged infringements (see recital 20 of Directive 2004/48; Art. 60 UPCA implements Art. 7 of this directive).”

The Local Division had dismissed Applicant’s request to order the Defendant to “fully cooperate with the bailiff and independent experts by (…) c. directly, completely and truthfully answer any questions the bailiff and/or experts may have during the execution of the measures” and “only” allowed the Applicant “to ask directors, officers, employees, agents, representatives, contractors and other persons acting on behalf of [the Defendant] direct questions”. However, the Court of Appeal found that this was also not allowed under Art. 60 UPCA. As a consequence, the Court ordered the technical expert to redraft their opinion, “excluding any parts that record [Defendant’s] personnel’s answers to substantive questions or contain findings by the technical expert that rely exclusively on such answers”.

headnote 2: “Art. 60 UPCA does not confer on the Court the power to allow a bailiff or expert to question the defendant’s personnel on technical details relating to the defendant’s products or production processes. Even if, in a specific case, obtaining statements from the defendant’s personnel were necessary for preserving evidence, this would have to take place under the Court’s control (cf., in the context of evidence taking, Art. 53 UPCA). Such questioning must therefore not be conducted by a bailiff or expert in the context of a description within the meaning of Art. 60(2) UPCA, or as part of an inspection under Art. 60(3) UPCA. In contrast, under Art. 60 UPCA, the Court may order a defendant to require its personnel to provide practical information necessary for the execution of measures for the preservation of evidence or the inspection of premises, such as passwords necessary to access digital data (cf. R. 196.1(d) RoP).“

The principles laid out in headnote 2 are explained in more detail in mn. 21 et seqq.; notably, the Court found that (mn. 25), “the fact that the Ex parte order expressly states that, under Dutch law, [Defendant] personnel are not obliged to answer the bailiff’s or expert’s questions on pain of a penalty, does not alter this assessment. The fact remains that the Court exceeded its powers by allowing the bailiff and expert to question [Defendant] personnel. Furthermore, even if the [Defendant] personnel took note of that statement, they could still reasonably have been under the impression that they were obliged to answer and that a refusal to answer questions might have negative consequences for them or [Defendant] other than penalty payments. This is because the questions were asked by a bailiff, which is a public authority, on the basis of express authorisation by the Court.”

headnote 3: “Where the preservation of evidence is necessary for the applicant to bring an infringement action, the applicant’s interest in the preservation of evidence, as a general rule, prevails over the interests of the defendant, even if the defendant believes it can defend itself against the allegation of infringement on the basis of a prior use right within the meaning of Art. 28 UPCA. The proper procedure for determining the alleged prior use rights is the infringement action that the applicant intends to bring. The purpose of measures for the preservation of evidence is merely to ensure that all relevant evidence is available for the infringement proceedings. Only where it is clear, on the basis of a summary examination, that the infringement action has no prospect of succeeding in light of the alleged prior use right must the application for preserving evidence be dismissed.”