2026-07-10 - LD Milan - Cardo v. Shenzhen Asmax Infinite Technology et al. - UPC_CFI_766/2024

The subjective element - i.e. whether or not the defendant was aware of the infringement - is important in determining the extent of damages, as set out in Article 68, para 1 and 4, UPCA. Indeed, in the first case the Court shall order the infringer to pay the injured party damages appropriate to the harm actually suffered by that party as a result of the infringement. In the second case the Court may order the recovery of profits or the payment of compensation. The deliberate copying of the opposing party’s Patent, coupled with continued infringement in defiance of the Court’s order, makes this awareness all the more apparent and enables the Court to grant the remedies provided for in the aforementioned Article 68, para 1, UPCA. The Court considers the subjective element when making interim awards for damages, as this involves an initial assessment of the same damages.

The Milan Local Division gave a default decision against two Asian suppliers of motorcycle communication units and used the infringer's state of mind to justify the size of the interim damages award. Awareness of the infringement matters under Art. 68 UPCA: paragraph 1 requires damages appropriate to the harm actually suffered where the infringer knew or had reasonable grounds to know, while paragraph 4 offers only recovery of profits or compensation. Deliberate copying coupled with continued infringement in defiance of an earlier order made that awareness plain, and the division took it into account when fixing the interim award, which is an initial assessment of the same damages. On service, twice-refused Hague Convention requests over a purely formal objection to how Hong Kong was named justified an order under R. 275.2 RoP declaring the steps already taken to be valid service, published on the court's website. Default is a neutral procedural circumstance: R. 171.2 RoP does not apply because specific contestation is a burden only of the party actually exercising its defence, but R. 355.2 RoP with Art. 54 UPCA still bars automatic grant, so the pleaded facts had to be proved.