LD Düsseldorf, May 7, 2026, Refusal Of Provisional Measures, UPC_CFI_1927/2025, 1928/2025

Re urgency requirement in case of provisional measures:
– Applicant’s burden to present/prove: the gaining of knowledge of the infringing embodiment, the potential infringement, and its prompt verification.
– Defendant’s burden to present/prove: the evidence from which it can be inferred that the applicant must have had prior knowledge and from which hesitant conduct can be inferred.

The applicant generally bears the burden to present and prove the gaining of knowledge that the infringing embodiment exists, the potential infringement, and its prompt verification. The relevant period extends from the time of becoming aware of the infringing embodiment as a potentially infringing product until all facts and evidence are available that are required to substantiate the facts of infringement.

It is presumed that the applicant must have been aware of the potentially infringing product if the applicant should have been aware of the potentially infringing characteristics according to conventional understanding and the ordinary course of events. The defendants bear the burden of presenting and proving the evidence from which it can be inferred that the applicant must have had prior knowledge and from which hesitant conduct can be inferred. If such indications are substantiated by the defendants, it is then up to the applicant why it could not have been aware of them and why it acted with sufficient promptness in this regard. (mn. 100)

The court may require the applicant to satisfy the court with a sufficient degree of certainty that the applicant is entitles to commence proceedings according to Art. 47 UPCA.