myStromer v Revolt Zycling (CFI, ORD_526778/2023, 22 June 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 22 June 2023 (UPC_CFI_177/2023, application 525740/2023), made on the day the application was filed and without hearing the respondent first, the Düsseldorf Local Division prohibited Revolt Zycling from offering, placing on the market, using, importing or possessing in Germany, the Netherlands, France and Italy the combination of bicycle frame and hub motor protected by myStromer’s EP 2 546 134. The order, published in German and in English translation, shows that an ex parte measure can be obtained on the very day of filing around a trade fair, despite a protective letter.

Facts and procedure

myStromer, a co-proprietor of the patent, targeted the « OPIUM » series of speed pedelecs, available for test rides at the Eurobike 2023 fair in Frankfurt since 21 June 2023 and offered for order on the respondent’s website, with no deliveries yet. It had inspected the model at Revolt Zycling’s Swiss seat on 19 June 2023 and sent an unsuccessful warning letter on 22 June 2023. The respondent had filed a protective letter on 19 June 2023 relying on exhaustion and denying infringement.

The applicable law

The Division applied Art. 62(1) UPCA and Rules 209 to 213 RoP, in particular Rule 209.2 RoP on discretion and urgency and Rule 212.1 RoP, which allows a decision without hearing the defendant where any delay is likely to cause irreparable harm. Exhaustion was assessed under Art. 29 UPCA.

Question

Were the conditions met for provisional measures without hearing the respondent, in light of the exhaustion and non-infringement arguments raised in the protective letter?

Decision

The admissible application was well founded. The respondent did not seriously dispute direct literal infringement. A multi-part second fork, with the thread located in a sensor, is still covered, as the patent does not exclude such a design. Exhaustion was rejected: in light of an injunction granted on 8 June 2023 by the Swiss Federal Supreme Court and the licence agreement produced, the respondent may not manufacture or distribute the claimed structure using components supplied by the other co-proprietor. Urgency followed from the Eurobike fair, nothing indicating that the applicant knew the design details before the inspection of 19 June 2023. Validity was considered sufficiently secure, given the absence of any opposition, national revocation action or relevant prior art put forward by the respondent. As the fair is a leading event and the products are directly competing substitutes, any delay would cause irreparable harm, which justified proceeding ex parte. Besides the injunction, the order provides for delivery of the products to a bailiff at the fair, a penalty of up to EUR 250,000 per contravention and an interim costs award of EUR 11,000 (EUR 16,000 having been sought). It is enforceable subject to security of EUR 500,000 to be provided within ten days of service. The application was otherwise dismissed.

Key points for practice

• A protective letter does not prevent an ex parte decision where its arguments fail on examination and a trade fair establishes urgency.
• The absence of opposition and revocation proceedings, together with the lack of relevant prior art, was enough at this stage to treat validity as secure.
• The security required (EUR 500,000) conditions enforcement and must be provided promptly, failing which enforceability lapses.
• Practical point: inspecting the product a few days before the fair helps document infringement and support the urgency of the application.

Provisions applied

Agreement on a Unified Patent Court

Arts. 25, 29, 60(6) and (8), 62(1) and (5) and 73(2)(a)

Rules of Procedure

Rules 197.3, 209.2, 211.1(b) and (d), 212.1, 212.2, 212.3, 213.1, 220.1(c), 224.2(b) and 276.1

Related decisions

• myStromer AG v Revolt Zycling AG, 30 June 2023, refusal to rectify the order to extend it to Austria.
• myStromer AG v Revolt Zycling AG, 18 October 2023, penalty imposed for breach of the injunction.

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.