2026-09-07 - LD Düsseldorf - fiskaly v. Swissbit et al. - UPC-CFI-0001332/2026

Was ist diese UPC-Entscheidung?

Zusammenfassung: The Düsseldorf Local Division reviewed, under R. 197.3 RoP, its own ex parte order for inspection and preservation of evidence and confirmed it, allowing only the respondents' auxiliary request. It adopted the two-stage review framework of the Brussels Local Division in Organon Heist v Genentech: the Court first asks whether it was right to order the measure without hearing the respondent (R. 194.1(d), R. 194.2 RoP, including the applicant's disclosure duty under R. 192.3 RoP), and then whether the order is to be confirmed, modified or revoked on the whole material (R. 197.4 RoP, Art. 60(1) and (3) UPCA); both steps are assessed ex ante, as at the date of the order, and neither extends to the enforcement of the measure or its results. On the merits it held that a plausible case of infringement suffices — bare speculation does not, but the evidentiary threshold under Art. 60(1) UPCA is lower than in infringement proceedings — and that possible non-infringing alternatives defeat the order only where they render the applicant's case implausible, investigating the alternative being precisely what the procedure is for. It further held that a protective letter containing no non-infringement argument can reinforce, ex ante, the suspicion of infringement, that the ex parte route was justified under the second limb of R. 197.1 RoP because prior warning would have let the respondents impede access to source code, logs and documents, and that an Art. 59 UPCA production order was not an equally effective, less intrusive means. Confidentiality is to be decided separately, outside the review.

Quelle und Fundstellen

Quelle: UPC Website

Aktenzeichen: UPC-CFI-0001332/2026