air up group v Guangzhou Aiyun Yanwu Technology (CFI, ORD_1375/2025, 9 January 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By a decision by default of 9 January 2025 (UPC_CFI_509/2023), panel 1 of the Munich Local Division granted air up group’s application for provisional measures against Guangzhou Aiyun Yanwu Technology, based on EP 3 897 305. It ordered the Chinese defendant, which had not responded, to refrain from offering, placing on the market, using, importing or storing a drinking device and aroma pods in seventeen UPC Member States, on pain of a penalty of up to EUR 100,000 per day. The decision shows that a non-European defendant which ignores a served application faces an immediately enforceable provisional injunction granted on the applicant’s submissions alone, subject to an application to set it aside within one month of service.

Facts and procedure

The patent concerns a drinking device for the retronasal perception of an aroma substance. air up group, the registered proprietor, complained that the defendant offered on its website a bottle with a mouthpiece and aroma pods. Its representatives made a test purchase delivered to an address in Germany on 27 November 2023, and the defendant reacted dismissively to the pre-action warning. The application for provisional measures was filed on 27 December 2023 and served under Rule 275.2 with a warning that a decision by default might be given. The defendant did not respond.

The applicable law

The decision rests on Art. 37 of the Statute and Rule 355 RoP, which allow a decision by default where a party fails to take a step within the time limit. Undue delay is assessed under Rule 211.4. On validity, the panel relied on the CJEU judgment in Case C-44/21, under which granted European patents enjoy a presumption of validity from the publication of their grant, and on Directive 2004/48. Immediate enforceability follows from Rule 355.4, and the defendant may apply to set the decision aside within one month of service (Rule 356.1).

Question

Can provisional measures be ordered by default against a defendant that does not respond to the served application, and on what assessment of validity, infringement and urgency?

Decision

The panel held the application admissible and well founded and decided in accordance with it. The patent is presumed valid and nothing suggested that it might be invalid (section I). Infringement of claims 1, 2, 6, 7, 8 and 10 was accepted, the applicant’s submissions being taken as established because of the default (section IV). The application was filed without undue delay, a few weeks after the test purchase. The infringement could cause considerable and lasting harm, and the defendant’s conduct suggested it would continue, so the order was necessary and proportionate (section V). The defendant bears the costs, the decision is immediately enforceable and its publication on the Court’s website with the parties’ names was ordered. Service of the decision will be dealt with separately (sections VI and VII).

Key points for practice

• The defendant’s silence led the panel to treat the infringement allegations as established, without any adversarial debate on claim scope.
• The presumption of validity drawn from Case C-44/21 was enough, absent any challenge, to dispose of validity.
• About one month between the test purchase and the application was held to involve no undue delay under Rule 211.4.
• Practical point: against an online seller established outside Europe, proper service with the Rule 275.2 warning opens the way to a provisional injunction by default covering every State named in the application.

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 2004/48/EC

Case law cited

CJEU, Case C-44/21

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.