On 6 March 2026, the Court of Appeal of the Unified Patent Court (UPC) issued its first-ever referral to the Court of Justice of the European Union (CJEU). The questions arose in a dispute concerning infringement of Dyson’s European Patent EP 3 119 235 for hair-styling devices.
Background
Dyson alleged that four multi-function hairdryers from Dreame International, a Hong Kong-based manufacturer, and Eurep, the EU authorised representative of Dreame, infringed their patent in certain UPC states and Spain, through online sales in Germany, Spain and other countries. The products in question were categorised into „new“ and „old“ products.
Dyson obtained a preliminary injunction from the local division of the UPC, requiring Dreame to refrain from infringing the patent within the UPC Territory and in Spain, and for Eurep to refrain from providing services for infringing the patent within the UPC Territory and in Spain.
The local division found that it is more likely than not that the patent was infringed by the „old“ products, but that the „new“ products do not fall within the scope of the patent.
Both Dyson and Dreame appealed.
Court of Appeal (CoA) action
The CoA decided to pause the case for the parts that involve the lawsuit against Dreame in the territory of Spain, and the lawsuit against Eurep. The reason being that these parts of the case raise questions concerning the interpretation of EU law, which the CoA has now referred to the CJEU.
The questions asked of the CJEU
Question 1 – Risk of irreconcilable judgments
The first question asks whether there is a risk of irreconcilable judgments arising if the claims are decided in separate proceedings in situations where:
- A first defendant, established outside the EU, is alleged to have infringed a national part of a European patent in an EU Member State that does not participate in the UPC, and
- A second defendant established in an EU Member State that participates in the UPC is alleged to be an intermediary whose services are used by the first defendant to carry out that infringement in the non-UPC Member State.
In essence, the question asks whether separate proceedings against the alleged infringer and the intermediary could lead to conflicting decisions, justifying the need to hear the cases together.
Question 2 – Jurisdiction for cross-border provisional measures
The second question asks whether the UPC can have jurisdiction to grant provisional measures (such as preliminary injunctions) against a company established outside the EU where that company is alleged to infringe a European patent both:
- in an EU Member State that does not participate in the UPC, and
- in one or more EU Member States that do participate in the UPC,
by offering the same products in all those countries through websites that are essentially identical except for the language.
Question 3 – Status of intermediaries
The third question follows the second and asks whether it is relevant to answering the second question, if the non-EU company uses an intermediary (such as Eurep, who acts as EU representative to Dreame) who is based in a UPC state (e.g. Germany).
Question 4 – Injunctions against intermediaries
The CoA asks whether EU law allows national courts, or the UPC, to issue preliminary injunctions against intermediaries (e.g. Eurep) to stop patent infringement committed by a third party (e.g. Dreame) whose products they represent.
The question is important because such representatives may not themselves commit infringing acts, but may enable market access in the EU.
What we can expect to see
The questions being asked of the CJEU are relatively specific to the case at hand, and so it is unlikely that the answers will definitively determine how far reaching the UPC’s jurisdiction is for all cases when a defendant is based outside the EU. Rather, we should get some clarity on the extent of UPC jurisdiction when a non-EU defendant is using an intermediary based in a UPC state.
Additionally, if it is determined that intermediaries can be injuncted to prevent infringement of a patent by a non-EU defendant, intermediaries may find themselves in a higher risk position than previously thought. Consequently, EU-based intermediaries may need to consider their risk exposure in greater depth before starting to work with non-EU manufacturers.
We can expect to wait at least a year before the CJEU issues a preliminary ruling. If you have any questions about this or other UPC matters, please contact our team.
