2024-07-03 - LD Düsseldorf - Franz Kaldewei v. Bette - UPC_CFI_7/2023

Was ist diese UPC-Entscheidung?

Zusammenfassung: The first merits decision of the Düsseldorf Local Division decided validity and infringement on a single construction and produced five headnotes. On defences, it held that Art. 28 UPCA is a sliding reference to national law, so a prior-use right must be pleaded for each Contracting Member State under that state's conditions; a right established in Germany does not travel. On remedies it separated three information instruments: the application to open the books under Art. 68(1) UPCA with R. 131.1(c) and R. 141 RoP belongs to the separate proceedings for determining the amount of damages and cannot be granted in the infringement action, while Art. 68(3)(a), (b) UPCA with R. 191 sentence 1 alternative 2 RoP does give a substantive entitlement, already in the infringement action, to the information the claimant needs to verify the account and to obtain reference points for its damages calculation — namely the cost factors relied on for the profit calculation, plus documentary proof (invoices, failing which delivery notes) for the Art. 67(1) UPCA account. It further held that definitive removal from the channels of commerce is an independent measure separate from recall, which flanks the recall and is available only where the infringer has the factual and legal means to carry it out, so the requested measures must be formulated accordingly. Finally, a retroactive extension of time must be applied for at the latest together with the submission it is meant to cover; an application filed afterwards has in principle no prospect of success.

Quelle und Fundstellen

Quelle: UPC Case File

Aktenzeichen: UPC_CFI_7/2023