1. Key takeaways
Confirmation of legal standard: it is a discretionary decision to order a security for legal costs and other expenses; imposing of a security serves to protect the position and (potential) rights of the Defendant
Factors to be considered (following CoA, UPC_CoA_328/2024; CD Munich, UPC_CFI_252/2023; LD Paris, UPC_495/2023):
- financial position of the other party that may give rise to a legitimate and real concern that a possible cost order might not be recoverable and/or
- likelihood that a possible cost order by the UPC may not, or in an unduly burdensome way, be enforceable.
Dismissal of application for review as judge-rapporteur of the order under review (App_35905/2024) correctly held that neither a financial risk nor a likelihood of unenforceability was presented
- Claimant, as part of the PepsiCo group, is financially able to comply with a decision on costs.
- The panel, even if it were to be assumed that it might take a long time to enforce a UPC judgement in Israel, does not see this as a sufficient ground to order a security.
- The fact that Claimant did not contact Defendant before initiation of proceedings in order to seek an amicable solution is insufficient to conclude that Claimant shows abusive behaviour or intention to evade an enforcement.
2. Division
LD Düsseldorf
3. UPC number
UPC_CFI_373/2023, ORD_48181/2024, App_47922/2024 related to ACT_580849/2023
4. Type of proceedings
Infringement Action / Request for panel review under R. 333.1 RoP
5. Parties
Claimant: SodaStream Industries Ltd.
Defendant (and Applicant): Aarke AB
6. Patent(s)
EP 1 793 917
7. Jurisdictions
Place jurisdictions
8. Body of legislation / Rules
R. 333.1 RoP, R. 158 RoP
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