Key takeaways
Failure of service under R. 274.1 RoP.
Where an application is made under Art. 62 UPCA, it is necessary to serve the application to the defendant to give him the possibility to lodge an objection to the application for provisional measures within a time limit to be specified. Failure of service is given if neither an informal nor a formal service in accordance with Rule 274.1 (a) (ii) RoP and Article 5 of the Hague Service Convention could be effected.
It is adequate to give a judgment after the expiry of six months since the date of the transmission of the documents.
Pursuant to the Hague Service Convention, it is not the receipt of the documents that is decisive for the period specified in Article 15 (2) b), but their transmission. Consequently, it is not important whether the defendant actually received the document and thus had an effective opportunity to take note of the contents of the document.
Alternative attempt of service: R. 275.1 RoP applies if a foreign authority refuses formal service pursuant to the Hague Service Convention seriously and definitively.
A serious refusal of service is given if a request for service is not processed for more than six months without any apparent reason. To be considered as an alternative method of service (R. 275.1 RoP), the method must be factually and legally possible. According to R. 275.2 RoP, an unsuccessful attempt to serve documents by means of R. 274.1 a) (ii) RoP usually is not acceptable as good service. Only if an attempt of service under R. 274 RoP has failed and service by (1) an alternative method or (2) at an alternative place is neither possible nor reasonable, the court may order that an an unsuccessful attempt of service under R. 274 RoP is good service.
Division
Local Divison Munich
UPC number
UPC_CFI_508/2023 ACT_597609/2023
Type of proceedings
Application for preliminary measures
Parties
Applicant: air up group GmbH
Defendant: Guangzhou Aiyun Yanwu Technology Co., Ltd
Patent(s)
EP 3 655 341
Body of legislation / Rules
R. 275.1 RoP, R.274 RoP, Art.5 The Hague Service Convention, Art. 15 The Hague Service Convention
