http://ipkitten.blogspot.com/2025/01/upckat-i-mop-case-previews-upcs.html
| Whether mopping – or dealing with default decisions in the UPC – it is best to imagine you are in a Dutch oil painting |
The UPCKat is covering something a little bit different this week, in the form of a default decision (UPC CFI 193/2024) handed down by the LD Munich in the i-mop v Arcora proceedings on 11 October 2024. With our guest UPCKat team in the form of guest UPCKat William Mooney and members from the team at Carpmaels, this post will examine what litigants need to know when dealing with default decisions.
Over to William and the team:
“The dispute revolved around a floor cleaning machine that Arcora displayed at a trade fair in Berlin in September 2023 and offered for sale on its website, with a water tank designed to soak a floor before scrubbing and vacuuming. In this case, the Court ultimately granted i-mop a default decision against Arcora, marking a tidy end to this dispute about a floor cleaning product. We will run through these key aspects of the decision in turn, looking at how they relate to what is said about default decisions in the UPC Agreement and Rules of Procedure.
While the parties had already agreed to the issuance of a decision by default, the case is still instructive as the decision lays out requirements that are imposed by Rule 355 RoP, each of which according to the LD Munich must be met before a decision by default can be issued.
1. The plaintiff must apply for such a decision
This is the most straightforward requirement as it is purely a formal one according to which a decision by default must be listed among the party’s requests. It had been duly fulfilled in this case: indeed, the plaintiff had included a request for such a decision when filing their claim.
2. The defendant must fail to perform an act incumbent upon it within a set time limit, or not submit a written response to a document served in the course of proceedings
In this case the defendant did not file any defence to the original statement of claim, or the reworded claims subsequently filed by the plaintiff. This requirement is clearly out of the control of a plaintiff, but in most cases it should be pleasingly simple to assess whether this requirement is met. Indeed, deadlines are set by the UPC Rules of Procedure in proceedings on the merits, and in court orders in provisional measures, thus the timeframe is quite predictable, and unilateral extensions are rarely granted.
3. The time limit for responding to the claim or counterclaim must have expired and it is ensured that service of the claim or counterclaim was effected in such a way that the defendant had sufficient time to file a defence
This point arises out of a necessity to avoid a decision by default arising where service has not actually been effected. In short, it must be guaranteed that a defendant was aware of the claim, and had an appropriate amount of time to reply. This requirement is therefore a useful check to ensure that decisions by default are not given in error, as the impact of such a decision is on a 300mio + people market and could be fatal. The protection of a defendant in litigation is one of the guiding principles of the UPC and appears in several provisions in the Preambles of the RoP and UPCA.
4. The facts presented by the plaintiff must justify the claim asserted, and the procedural behaviour of the defendant must not preclude issuance of a decision by default
The most complex requirement of the four, the plaintiff must present a justified case. Here, the plaintiff provided evidence and arguments of infringement in their initial claim. Unlike the wet cleaning, the issue of infringement appeared to be more cut and dry, with the court considering that direct infringement on a literal basis had indeed been convincingly shown, and so this requirement was met.
It is a notable policy decision that the court will still examine the merits of the case, even when the defendant does not defend themselves. The rationale here is that it would not be in the interests of justice for a decision by default to be given where the plaintiff had submitted a weak case, and so a plaintiff should not expect a decision by default to be automatic when a defendant does not file a defence.
This case provides a useful example of how the UPC will approach giving decisions by default, noting the early signs that a substantive review of the merits of a plaintiff’s case will be a key aspect of such decisions. This UPCKat is interested to see how the UPC handles future requests for a decision by default so we can gain more of an understanding about quite how strong a plaintiff’s case will need to be to justify a decision by default.”
** the above case summary is based on an English machine translation of the original German order.
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