air up group v Guangzhou Aiyun Yanwu Technology (CFI, ORD_1358/2025, 9 January 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision by default of 9 January 2025 (UPC_CFI_508/2023, ACT_597609/2023), the Munich Local Division ordered Guangzhou Aiyun Yanwu Technology, a Chinese company that had remained silent after service was deemed good, to stop offering, placing on the market, using, importing or storing in seventeen Member States an aroma drinking bottle falling within claim 1 of air up group’s EP 3 655 341. The injunction carries a penalty of up to EUR 100,000 per day and is immediately enforceable. The decision shows that a defendant’s absence does not relieve the Division of examining validity, infringement, urgency and proportionality itself before granting provisional measures.

Facts and procedure

The patent concerns a drinking device for retronasal perception of an aroma substance. The applicant relied on claim 1 and dependent claims 2, 4 and 10 against a bottle with mouthpiece and aroma pods, bought in a test purchase delivered to a German address on 27 November 2023. The application for provisional measures, filed on 27 December 2023, was deemed served under Rule 275.2 RoP by order of 9 December 2024. Warned that a decision by default could follow, the defendant did not respond.

The applicable law

The decision by default rests on Article 37 of the Statute of the Court and Rule 355 RoP. On validity, the Division refers to the CJEU judgment in Case C-44/21, which presumes granted European patents to be valid, and to the protection afforded by Directive 2004/48. Timeliness is assessed under Rule 211.4 RoP.

Question

Where the defendant has not responded at all, are the conditions for provisional measures met, and how far can they extend territorially when granted by default?

Decision

The patent is in force and the Division saw no reason to doubt its validity. Having set out the technical problem (pressure and flow fluctuations at the end of drinking, which can drive liquid into the air channel or aroma container), it found that the product meets features 1 to 1.5 of claim 1 and claims 2 (sealing device), 4 (removable container moving between sealing and non-sealing positions) and 10 (air channel of about 1 mm). The application was filed without undue delay, a few weeks after the test purchase. The infringement could cause lasting market damage, and the defendant’s dismissive reply to the warning letter pointed to continued infringement. The Division ordered the defendant to cease in seventeen Member States, set a penalty of up to EUR 100,000 per day of infringement, ordered the defendant to bear the costs, declared the decision immediately enforceable (Rule 355.4 RoP) and ordered its publication on the Court’s website.

Key points for practice

• A decision by default on provisional measures is still reasoned: the Division checks infringement feature by feature on the applicant’s material alone.
• Filing about one month after the test purchase satisfies the timeliness requirement of Rule 211.4 RoP.
• The defendant’s pre-action conduct, including its reply to the warning letter, informs the assessment of the risk of future infringement.
• Practical point: against a defendant based in China, deemed service under Rule 275.2 RoP followed by a decision by default secured here an injunction covering seventeen Member States.

Provisions applied

Statute of the Court

Art. 37

Rules of Procedure

Rules 211.4, 275.2, 355 and 356.1

Directive 2004/48/EC

Directive on the enforcement of intellectual property rights

Case law cited

CJEU, Case C-44/21.

Related decisions

• air up group v Guangzhou Aiyun Yanwu Technology, 9 December 2024, order deeming service good (Rule 275.2 RoP).

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.