Ballinno v Kinexon Sports & Media (CoA, 12 May 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 12 May 2025 (UPC_CoA_328/2024), the Court of Appeal ruled on Ballinno’s appeal against the Hamburg Local Division’s orders requiring it to provide security for costs of EUR 56,000 and then dismissing its application for provisional measures against Kinexon and UEFA under EP 1 944 067 (offside detection). It held the appeal on security admissible, found the action devoid of purpose and set out the principles for allocating costs to be applied in the next stage.

The order matters to anyone handling provisional measures: an applicant who rests urgency on a single event, here UEFA EURO 2024, bears the risk of its interest falling away and will ordinarily be treated as the unsuccessful party if it drops the application.

Facts and procedure

Ballinno applied to the Hamburg Local Division for an injunction, seizure and penalty payments directed at the connected ball technology. The Division first ordered it to provide security for costs of EUR 56,000 (14 May 2024), then dismissed the application for lack of urgency and insufficient proof of infringement, setting the value in dispute at EUR 500,000. On appeal, after EURO 2024 had ended, Ballinno stated that it no longer sought an injunction, while still asking for the security and costs orders to be set aside (paragraphs 1 to 9). The appeal was heard on 24 February 2025.

The applicable law

The Court applied Art. 69(4) UPCA (security for costs), Rule 220.2 (appeal against orders together with the decision), Rule 265 (withdrawal) and Rule 360 (action devoid of purpose), together with Art. 69(1) UPCA on costs, read in light of Arts 3 and 14 of Directive 2004/48.

Question

Does an appeal against a security for costs order remain admissible once the applicant drops the provisional measures, and how should costs be allocated when urgency disappears with the event on which it was based?

Decision

Security under Art. 69(4) applies to applications for provisional measures (paragraph 29). A security order may be appealed together with the appeal against the order deciding the action, without separate leave, and a later abandonment of the measures does not make that appeal inadmissible (paragraphs 33 to 39). As Ballinno maintained its requests on security and costs, there was no withdrawal under Rule 265 (paragraph 40).

The action had, however, become devoid of purpose: Rule 360 gives the Court a broad discretion that is not in the parties’ hands (paragraphs 41 and 42), and urgency does not lapse automatically with the event, but a party that rests it on a single event bears that risk (paragraphs 46 to 53). A party that drops its application in such circumstances is in principle the unsuccessful party (paragraph 60), unless the impugned order rests on manifest errors (paragraph 61) or circumstances that could not reasonably have been foreseen justify a different allocation on grounds of equity (paragraph 62). As the EURO 2024 schedule was known, the risk was foreseeable, and no manifest error was found (paragraphs 63 and 64). The parties were invited to state by 22 May 2025 whether they agreed to a decision without a further hearing.

Key points for practice

• A security for costs order made in provisional measures proceedings may be appealed together with the decision on the measures, without separate leave.
• Urgency tied to a dated event is assessed case by case, but its foreseeable lapse remains at the applicant’s risk.
• On closure under Rule 360, review of the impugned order is confined to looking for manifest errors.
• Practical point: an applicant that ties urgency to a one-off event should weigh the costs risk, since a later withdrawal will ordinarily place it in the position of the unsuccessful party.

Provisions applied

Agreement on a Unified Patent Court

Arts 62, 69(1), 69(4) and 73(2)

Rules of Procedure

Rules 158, 220.1, 220.2, 265 and 360

Directive 2004/48/EC

Arts 3 and 14

Case law cited

Kinexon Sports & Media, 26 August 2024, Meril Life Sciences v Edwards Lifesciences, 4 October 2024, Photon Wave v Seoul Viosys, 15 October 2024, CJEU, 28 April 2022, C-559/20, Koch Media

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.