2026-09-03 - CoA - WEPA NEDERLAND v. ESSITY HYGIENE AND HEALTH - UPC-COA-0000113/2026

1. The scope of application of Art. 60 UPCA is not limited to technical documentation. It may also encompass evidence of alleged acts of infringement contained in promotional and commercial documentation. 2. Art. 60 UPCA does not confer on the Court the power to allow a bailiff or expert to question the defendant’s personnel on technical details relating to the defendant’s products or production processes. Even if, in a specific case, obtaining statements from the defendant’s personnel were necessary for preserving evidence, this would have to take place under the Court's control (cf., in the context of evidence taking, Art. 53 UPCA). Such questioning must therefore not be conducted by a bailiff or expert in the context of a description within the meaning of Art. 60(2) UPCA, or as part of an inspection under Art. 60(3) UPCA. In contrast, under Art. 60 UPCA, the Court may order a defendant to require its personnel to provide practical information necessary for the execution of measures for the preservation of evidence or the inspection of premises, such as passwords necessary to access digital data (cf. R. 196.1(d) RoP). 3. Where the preservation of evidence is necessary for the applicant to bring an infringement action, the applicant’s interest in the preservation of evidence, as a general rule, prevails over the interests of the defendant, even if the defendant believes it can defend itself against the allegation of infringement on the basis of a prior use right within the meaning of Art. 28 UPCA. The proper procedure for determining the alleged prior use rights is the infringement action that the applicant intends to bring. The purpose of measures for the preservation of evidence is merely to ensure that all relevant evidence is available for the infringement proceedings. Only where it is clear, on the basis of a summary examination, that the infringement action has no prospect of succeeding in light of the alleged prior use right must the application for preserving evidence be dismissed.

The Court of Appeal set the limits of an evidence-preservation and inspection order under Art. 60 UPCA. The scope of the provision is not confined to technical documentation: because Art. 60(1) UPCA covers any relevant evidence in respect of the alleged infringement and R. 196.1(d) RoP allows the preservation of digital media and data without qualification, promotional and commercial documentation may be seized too. But Art. 60 UPCA gives the Court no power to let a bailiff or an expert question the defendant's personnel on the technical details of its products or processes; statements would have to be taken under the Court's own control, and a warning that the personnel need not answer does not cure the defect, because a bailiff is a public authority acting on the Court's express authorisation. The Court may still order the defendant to have its personnel supply practical information such as passwords, which is not evidence but the means of securing it. On the merits threshold, an ex parte order needs no urgency where evidence risks ceasing to be available, validity need not be examined unless the presumption is clearly called into question, and an alleged prior use right defeats the application only where a summary examination shows the intended infringement action clearly has no prospect.