2023-10-18 - LD Düsseldorf - myStromer v. Revolt Zycling - UPC_CFI_177/2023

Was ist diese UPC-Entscheidung?

Zusammenfassung: In the first UPC penalty-payment decision under Rule 354.4 RoP, the Düsseldorf Local Division imposed a Zwangsgeld of EUR 26,500 on Revolt Zycling AG for three culpable breaches of an ex parte PI (Eurobike trade-fair stand kept open for hours after service; delayed deletion of an Instagram account containing a test-ride booking feature; provision of a test bike to dealer 'Fahrrad Fischer' for a Sunday sales event). The Court set out general principles: the penalty payment has a coercive primary function and a secondary punitive character, so Verschulden (fault) of the debtor is an unwritten element; the amount is primarily determined by the debtor's conduct (nature, scope, duration of breach, degree of fault, benefit gained, risk of future infringement); the debtor's past conduct is a key (though not exclusive) factor. It also clarified the concept of 'offering' under Art. 25(a) UPCA as a purely economic one: displaying a product at a trade fair within a patent's territorial scope is an offer, even by a Swiss-based exhibitor, and even if individual features (here the through-axle and torque sensor) have been temporarily removed, provided that the relevant trade circles would understand from the overall circumstances that the patent-compliant embodiment is what is being offered. The fourth alleged breach — the 'Confirmation' letter to Belgian dealers of 28 June 2023 — was rejected; the wording only permitted sales to customers from DE/NL/FR/IT when physically present in Belgium, and the applicant had not concretised or proven any cross-border delivery arrangement, so the BGH 'Funkuhr / Audiosignalcodierung' doctrine on foreign suppliers was not triggered.

Quelle und Fundstellen

Quelle: UPC Website

Referenz: ORD_557761/2023

Aktenzeichen: UPC_CFI_177/2023