2025-01-27 - LD Munich - Snowpixie v. Golf Tech Golfartikel Vertriebs - UPC_CFI_244/2024

1. If a small enterprise shows an operating loss in the most recently prepared annual financial statement and if assets are not available as security to a sufficient extent, security is to be ordered at the request of the opposing party in accordance with Rule 158 of the Rules of Procedure. 2. When assessing the security, reasons of equity that become relevant for the subsequent determination of costs must be taken into account. This is because the assessment of the security must be based on the costs to be determined in accordance with Art. 69 UPCA; according to Art. 69 UPCA, reasons of equity may preclude the bearing of costs in whole or in part. 3. The possibility of a reduction of fees or costs for the purpose of granting effective access to justice is a principle determining UPC law. This must also be taken into account with respect to equity when assessing the amount of a security to be provided by a small enterprise. 4. A party that is able to pay both its own costs (court fees and representation costs) and a security set by the court is able to bear the costs. Legal aid cannot be granted in this case.

The Munich Local Division ordered the claimant, a small enterprise, to provide a security for the legal costs due to its most recent financial statement. While the court explained that equity had to be considered for the determination of costs and the assessment of the security, it further stated that an enterprise that could pay its own costs as well as a security would not be granted legal aid. This order was published twice for two separate patents.