myStromer v Revolt Zycling (CFI, 18 October 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 18 October 2023 (UPC_CFI_177/2023, APP_552740/2023), the Düsseldorf Local Division ordered Revolt Zycling to pay a penalty of EUR 26,500 for breaching the injunction granted against it at myStromer’s request by the provisional measures order of 22 June 2023 (ORD_526778/2023) based on EP 2 546 134. Three of the four alleged breaches were upheld. The order, one of the first UPC decisions on penalty payments, sets out the criteria for fixing their amount and adopts an economic reading of « offering » under Art. 25(a) UPCA, leave to appeal was granted.

Facts and procedure

The provisional measures order, made without hearing the defendant, was served on its chief executive on 23 June 2023 at the Eurobike fair. It provided for a penalty of up to EUR 250,000 per breach. On 21 July 2023 myStromer applied for a penalty, relying on four breaches: keeping the booth open after service, late deletion of an Instagram account offering test rides, a « confirmation » letter sent on 28 June 2023 to Belgian dealers, and the provision of a test bike displayed at a retailer’s Sunday shopping event on 24 September 2023.

The applicable law

The application was based on Art. 82(4) UPCA and Rules 264 and 354.4 RoP. According to the headnotes, a penalty payment is mainly coercive, intended to deter the debtor from future breaches, but it also has a punitive side. Fault on the debtor’s part is therefore an unwritten requirement. The amount depends chiefly on the debtor’s conduct: the nature, extent and duration of the breach, the degree of fault, the benefit obtained and the risk of repetition.

Question

Did the conduct complained of amount to culpable breaches of the injunction, and what penalty should be imposed?

Decision

The Division found three breaches. Keeping the booth open after service was an offer: « offering » under Art. 25(a) UPCA is to be understood in purely economic terms, and an offer does not require every feature of the claim to be visible. Removing certain parts from the bikes on display did not prevent the promotion of working e-bikes of the series concerned. An ongoing offer must be withdrawn promptly after service. Deleting the Instagram account the following morning was a breach, and the debtor’s Swiss seat made no difference. Supplying the test bike shown at the retailer was an offer in Germany in which the debtor took part. Fault was established for each of these acts. By contrast, the letter to the Belgian dealers did not show an intention to supply the covered states, and the claimant’s case on deliveries was not substantiated. The Division drew by analogy on the case law of the German Federal Court of Justice (BGH, Audiosignalcodierung). The penalty breaks down into EUR 1,000 for the booth, EUR 500 for the Instagram account and EUR 25,000 for the test bike. Costs were split 25% to the claimant and 75% to the defendant, the value in dispute was set at EUR 150,000, the order was declared immediately enforceable and leave to appeal was granted.

Key points for practice

• Fault is a condition of a penalty payment. Any misapprehension on the debtor’s side bears only on fault and on the amount.
• The economic concept of offering makes the ad hoc removal of parts from a displayed product irrelevant: what counts is the message conveyed to the public.
• The graduated amounts (EUR 500 to EUR 25,000) show the Division tailoring the penalty to the seriousness and commercial reach of each act, well below the stated ceiling.
• Practical point: as soon as an injunction is served, the debtor must shut down ongoing offering channels, including social media and products made available through third parties, or face a penalty.

Provisions applied

Agreement on a Unified Patent Court

Arts. 25(a), 73(2)(b)(ii) and 82(3) and (4)

Rules of Procedure

Rules 118.5, 171.1, 220.2, 264, 352.1, 354.3 and 354.4

Related decisions

• myStromer AG v Revolt Zycling AG, 22 June 2023, provisional measures order whose breach is sanctioned.

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.