Home » UPC decisions » Luxembourg Court of Appeal » CoA Luxemburg, April 3, 2024, UPC_CoA_433/2023 etc.

CoA Luxemburg, April 3, 2024, UPC_CoA_433/2023 etc.

4 min Reading time

Key takeaways

If the claimant has not correctly named the defendant in the statement initiating the proceedings, the Court may allow the claimant to rectify the error so long as the defendant is not unreasonably prejudiced by the incorrect statement of name and its rectification. In particular, if, despite the incorrect statement of name, it must have been clear to the defendant and to the Court, based on the circumstances of the case, that the claimant intended the statement for revocation to be directed against the defendant.

In the case at hand, (i) the registered office mentioned by the claimant in the statements for revocation differed only to a limited extent from the defendant’s actual name and registered office, (ii) the content of the statements for revocation made it clear that the claimant intended the statements to be directed against the registered proprietor of the patents at issue and (iii) the claimant indicated the defendant’s registered agent as adress for service.

The defendant had no reason to believe that the claimant made a concious decision to direct the statements of revocation against them. The fact that the claimant’s parent company had initiated proceedings against the rroneously named group company before the International Trade Commission and that the same group company is the proprietor of US patents as well as the repetition of the incorrect statement of name, even after the CMS provided the claimant with information about the patents at issue, including the fact that the defendant is the registered proprietor, is not sufficient for this purpose.

The RoP provide that the principal decision on the obligation to bear the costs of the proceedings will be made in the final order or decision, in particular the decision on the merits (R 118.5 RoP), optionally in combination with an interim award of costs (R 150.2 RoP). The final decision is also the best stage of the proceedings to assess whether and to what extent a party can be considered unsuccessful within the meaning of Art. 69 UPCA.


Luxemburg CoA

UPC number

UPC_CoA_433/2023, UPC_CoA_435/2023, UPC_CoA_436/2023, UPC_CoA_437/2023, UPC_CoA_438/2023

Type of proceedings

Revocation actions


Juul Labs International Inc.

NJOY Netherlands B.V.


EP 3 498 115, EP 3 504 990, EP 3 504 989, EP 3 504 991, EP 3 430 921


Place jurisdictions

Body of legislation / Rules

Rule 118.5 RoP, Rule 150 RoP Rule 42.1 RoP, Rule 305.1.c RoP, Rule 242.1 RoP, Art. 33.4 UPCA, Art. 32.d RoP, Art. 69 UPCA

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