A guide to the UPC and the UP - Flipbook - Page 313
Seizure or Delivery up of Goods and Seizure of Assets
16-37 The substantive requirements that apply to provisional injunctions also apply to applications
for seizure of goods and assets. In respect of seizure or delivery up of goods in order to prevent
their entry into or movement within the channels of commerce, the applicant will need to
substantiate the basis for requiring the order with reference to the potential harm to the
parties that the seizure or non-seizure will cause. In respect of applications for the seizure of
assets, including the blocking of bank accounts, the applicant must additionally “demonstrate
circumstances likely to endanger the recovery of damages”. 34
Freezing Orders
16-38 Art.61(1) UPCA and r.200(1) RoP both refer to the applicant for a freezing order doing so on
the basis that the patent has been or is about to be infringed and “reasonable available
evidence” to support this must be presented by the applicant. R.200 RoP adds that the
evidence must be “plausible”.
Procedural Requirements
16-39 The procedural rules relating to applications for provisional injunctions, seizure of goods,
seizure of assets and costs are all the same, contained as they are in rr.205 to 213 RoP. R.205
RoP specifies that applications for these provisional measures are to be treated by way of
summary procedure comprising a written procedure and an oral procedure. The written
procedure may in suitable cases comprise only the filing of the application. Note that r.14
RoP specifies the language requirements for procedures before the Court and applies to
applications for provisional and protective measures. 35
The Application
16-40 R.206(1) RoP notes that an application for provisional measures may be made before or
after the main proceedings on the merits have begun. Unreasonable delay in applying for the
provisional measures will be a factor that counts against the applicant in the Court’s weighing
of its discretion. Therefore in many circumstances, it will be appropriate to apply for provisional
measures before or at the same time as commencing main proceedings.
16-41 The content of the application is specified in rr.206(2) and (3) RoP. 36 It is unclear to what extent
evidence is needed of the applicant’s entitlement to commence proceedings and the validity
and infringement of the patent in question, 37 as this is evidence that the Court could ask for
once the application is underway. However the express reference suggests at least some such
evidence is required with the application in order to satisfy the burden of showing that the
provisional measure is necessary.
16-42 The applicant must pay a fee of €11,000 for the application for provisional measures. 38
The application is not validly made until the fee has been paid. 39 The fee is in addition
to the fee for the action on the merits.
34
35
36
37
38
39
r.211(1)(c) RoP and art.62(3) UPCA.
r.206(5) RoP. See chapter 11 (Overview of Procedure and General Procedural Provisions) paragraphs 11-107 to 11-130.
See paragraphs 16-30 to 16-35.
As required by the reference in r.206(2)(d) RoP to r.211(2) RoP.
r.206(5) RoP and part 6 RoP. Note that the fee for an order to freeze assets under art.61 UPCA and r.200 RoP is €1,000.
r.15(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 303
