Case Law
Rule 212: Order on provisional measures without hearing the defendant

Court of First Instance - Düsseldorf (DE) Local Division, Order dated 11/12/2023, Ortovox Sportartikel GmbH ./. 1. Mammut Sports Group AG, 2. Mammut Sports Group GmbH (Case number UPC_CFI_452/2023 ORD_592936/2023)
Example of decision on the possibility to benefit from provisional measures where the defendant which owns the disputed patent has not been heard : “Even if the patent on which the request for provisional measures is based has not yet been the subject of adversarial proceedings in the first instance, the existence of the right may be assured to the extent necessary for the adoption of provisional measures (following UPC_CFI_177/2023 (LD Düsseldorf), order of 22.06.2023).
2) If the patent in dispute is exposed to an attack on the existence of the right, this does not preclude the adoption of provisional measures. In such a case, it is rather the task of the trial chamber to assess whether the existence of the right is sufficiently guaranteed despite such an attack. This is the case when the objections raised against the validity of the patent in dispute are not of such a nature as to create a well-founded doubt as to the validity of the patent in dispute.
3) The absence of temporal urgency can only be accepted if the injured party has been so negligent and hesitant in the pursuit of its rights that it must be concluded, from an objective point of view, that the injured party has no interest in asserting its rights quickly and that it therefore does not appear appropriate to authorize it to apply for provisional legal protection.
4) The likelihood of irreparable damage on the part of the plaintiff, which is necessary to order provisional measures without hearing the defendant, may exist when the contested form of realization is exhibited at a leading trade fair which is important for the industry as a whole (following UPC (UPC_CFI_177/2023 (LD Düsseldorf), order of 22.06.2023). Even if such a flagship trade fair has already ended by the time the application is filed, the adoption of an ex parte injunction may be justified if a significant number of commercial transactions can be expected after the trade fair, if a large proportion of these transactions are concluded in the period immediately following the trade fair, and if the parties’ products are direct, substitutable competitors.”

Court of First Instance - Vienna (AT) Local Division, Order dated 13/09/2023, CUP&CINO Kaffeesystem-Vertrieb GmbH & Co. KG v. ALPINA COFFEE SYSTEMS GmbH (Case number UPC_CFI_182/2023, ACT_528738/2023)
Example of decision issuing provisional measures without prior hearing of the Respondent: “The Applicant has credibly demonstrated that any delay is likely to cause irreparable harm to them (R. 212.1 RoP). "Eurobike 2023" is an important leading trade fair that has considerable relevance for the entire industry. It enables the Respondent to make contact with potential customers and thus establish its own market presence. It is obvious that the exhibition of the contested embodiment at this trade fair can lead to a loss of sales or market share for the Applicant that can hardly be reversed. The products of both parties are substitutable, directly competing products.”