LD Duesseldorf, July 3, 2026, order on penalty payments, UPC_CFI_723/2025

The term “offering” must be interpreted autonomously and in an economic sense. It is sufficient to present an item so that a viewer can make an offer to acquire it (invitatio ad offerendum). Thus, neither price indication nor ability to deliver is required.

The Court expressly extended the CoA’s ruling in Belkin v. Philips (UPC_CoA_534/2024) and held that this principle can also be applied to the concept of “offering” in Art. 25(b) and (c) and Art. 26 UPCA.

The regulatory character of the User Manual does not prevent it from constituting an “offering.” Where potential customers visiting the defendant’s website are likely to consult a user manual describing an infringing feature, that manual creates demand capable of influencing supplier choice, irrespective of whether the feature is currently disabled in the relevant territory.

Social media posts promoting an infringing feature remain an “offering” under Art. 25 UPCA for as long as they are publicly visible and findable. The age of the posts and the volume of subsequently published content are not decisive, but are relevant to assessing the severity of the breach when calculating penalty amounts.

Penalty payments serve both a coercive and a punitive function; their imposition requires fault. The defendant bears the burden of proving that full and timely compliance was impossible or unreasonable.

Relevant proportionality factors include the severity and duration of the breach, the defendant’s ability to pay, the advantage to the infringer, and the risk to the patent proprietor (Kodak v. Fujifilm, Order of 14 October 2025 mn. 42 (UPC_CoA_699/2025), Belkin v. Philips, Order of 30 May 2025, mn. 35 and 57 (UPC_CoA_845/2024) and myStromer v. Revolt, Order of 18 October 2023, p. 15 (UPC_CFI_177/2023)).

Prompt disabling of infringing features and good-faith compliance efforts justify a significant penalty reduction, but defendant must audit all public-facing materials for residual infringing content (Art. 82(4) UPCA, R. 354.3, 354.4 RoP).

The Court found defendants particularly at fault for overlooking social media posts that were explicitly mentioned in the original application for provisional measures and the injunction order itself, heightening their duty of awareness.

However, as the probability of many users actually viewing the social media posts and the User Manual was considered rather low the Court only imposed a penalty payment in total of EUR 1.5000,- per day which is less than 10% of the maximum amount set forth in the order.

Penalty Payment orders do not fall under Art. 73(2)(a) UPCA or R. 220.1(c) RoP and are therefore not automically appealable.

Rather, leave to appeal must be granted either by the CFI pursuant to R. 220.2 RoP or by the CoA after a discretionary review pursuant to R. 220.4 RoP.

Because the applicant’s request of EUR 580,000 in penalties was only partially successful (EUR 49,500 ultimately ordered) the Court divided costs equally between the parties.

The value of proceedings was set to the amount originally claimed by applicant.