Yealink v Barco (APL_19989/2025, APL_16185/2025)
Decision date:
28 November 2025
Osborne Clarke summary
- This decision concerned an appeal from the Brussels LD’s order denying Barco's application for provisional measures. The proceedings concern Barco's unitary patent covering methods and systems enabling meeting participants to access functional devices (with associated software). The Brussels LD held that it was competent to hear Barco's application but dismissed it for lack of urgency and ordered Barco to bear reasonable and proportionate legal costs up to the applicable ceiling of €112,000. Both parties appealed.
- The Court of Appeal addressed three issues: i) Yealink's preliminary objection to the Brussels LD's competence, ii) the Brussels LD's finding of a lack of urgency, and iii) the €112,000 interim costs award.
- On competence, the court confirmed that, while Rule 19.1(b) RoP concerning preliminary objections was not directly applicable to provisional measures proceedings, the Brussels LD correctly treated Yealink's objection as a defence under Rule 209 RoP. The Court of Appeal held that for reasons of efficiency, and in view of the urgency of interim measures applications, Rule 19.5 RoP shall apply mutatis mutandis, meaning referral to a competent division is possible in provisional measures proceedings. If the division seised considers a defence raised on the competence of the local division is well-founded and the applicant for provisional measures indicated another division that is competent, it shall refer the application to that division.
- The Court of Appeal emphasised that competence of the divisions of the Court of First Instance is regulated by Article 33 UPCA. It is a UPC internal matter and is not governed by the recast Brussels Regulation. Rejecting Yealink's argument that Article 33(1)(a) UPCA should be interpreted restrictively as a special rule derogating from the general rule in Article 33(1)(b) UPCA, the court observed that the linguistics of Article 33(1) UPCA speak against such an interpretation, noting that the two provisions are separated by "or", making them alternatives. The court held that for the purpose of establishing competence of a local division, there is no hierarchy between competence based on the place where the actual or threatened infringement has occurred or may occur in Article 33(1)(a) UPCA, and competence based on the residence or principal place of business of the defendant in Article 33(1)(b) UPCA.
- The establishment of whether a first instance division is competent should not be based on a comprehensive evaluation of the evidence in relation to disputed facts that are relevant both to the question of competence and to the existence of the claim, since such an assessment would improperly anticipate the outcome. Rather, the Cout of Appeal confirmed that the court will only take a cursory look at the parties' allegations and evidence as provided, if any.
- Applying these principles, the Court of Appeal noted that Barco's test purchases were carried out in Belgium, with a bailiff documenting the purchasing activities, and that Yealink products were ordered from bechtle.com and delivered to Belgium. The court held that even in the absence of any specific allegation about a connection between the actor that supplied the test product in Belgium and the Yealink companies, what Barco had presented was sufficient to establish competence for the Brussels LD.
- On urgency, when weighing the parties interests, the court shall have regard to any unreasonable delay in seeking provisional measures as per Rule 211.4 RoP. The Court of Appeal confirmed that the Brussels LD correctly considered that Barco unreasonably delayed in making its application for provisional measures. The timeline showed that the EPO announced its intention to grant the patent on 6 May 2024, the mention of the patent grant was published on 12 June 2024, Barco filed the request for unitary effect on 2 July 2024, and unitary effect was registered on 23 August 2024. Barco then made its test purchase on 29 August 2024, but it did not lodge its application for provisional measures until 2 October 2024. The Court of Appeal considered that Barco could have made its test purchase on 12 June 2024, or very shortly thereafter, and following technical analysis, the application for provisional measures could have been lodged on 15 July 2024, or a few days later, as had been rightly observed by the Brussels LD.
- Barco had sought to argue that "a series of unfortunate circumstances outside of Barco's control" relating to its representatives had resulted in it taking far longer than usual between the request for unitary effect and its registration. The Court of Appeal rejected this, noting that Barco was responsible for the performance of its representatives when applying for unitary protection, and it had the means to verify that the application had been made but did not do so with the necessary urgency.
- On the interim costs award, the Court of Appeal held that an interim award of costs may also be ordered in favour of the defendant in proceedings for provisional measures even if it is not expressly provided for in Rule 211.1(d) RoP (as it is in Rule 150.2 RoP for decisions on the merits). For reasons of equality of arms alone, the same rules on interim awards of costs apply in proceedings for interim measures as in the main proceedings. However, the court considered that an interim costs award of up to half of the ceiling was generally more appropriate. An interim award up to the applicable ceiling would effectively make the procedure for a cost decision pursuant to Rule 150 RoP largely redundant.
Issue
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