Introduction
In the first part of this article (UPC Court of Appeal (CoA) clarifies cross-border jurisdiction and provides guidance to the Court of First Instance), we examined cross-border injunctions against defendants domiciled within the UPC’s territory. Pursuant to Articles 4 and 71b of the Brussels Ia Regulation (Brussels Ia), such defendants are subject to comprehensive international jurisdiction, including for infringements of EP designations occurring outside the UPC’s territory.
This does not apply to defendants domiciled outside the UPC’s territory. The UPC’s international jurisdiction under Article 7(2) of the Brussels Ia against such defendants (i.e. international jurisdiction of the UPC based on the place where the infringement occurred) is limited to the UPC’s territory, meaning that such defendants generally do not face cross-border measures by the UPC.
However, there are two possible exceptions based on provisions of Brussels Ia, the interpretation of which the Hamburg Local Division (LD) had to address in two preliminary injunction actions Dyson lodged against several companies of the Dreame group before the Hamburg LD of the UPC (UPC_CFI_387/2025; UPC_CFI_2255/2025). In the appeal proceedings against the first decision of the LD (UPC_CoA_789/2025; UPC_CoA_813/2025), the still unclear interpretation of provisions of Brussels Ia led to the first referral of questions from the UPC Court of Appeal (CoA) to the European Court of Justice (CJEU - C-196/26).
Legal background
Specifically, the following provisions of Brussels Ia may, where applicable, permit the UPC to exercise cross-border jurisdiction over a defendant even if that defendant is domiciled outside the UPC’s territory:
- Article 8 (1) in conjunction with Article 71b of Brussels Ia, which provides that the UPC has international jurisdiction over joint defendants if (at least) one of them (the ‘anchor defendant’) is domiciled within the UPC’s territory and the claims are so closely connected that a single decision is necessary to avoid conflicting judgments.
- Article 71b(2), second sentence, of the Brussels Ia, which provides by way of exception that the UPC has international jurisdiction to grant interim measures against a defendant even if it does not have international jurisdiction over that defendant for the main action on the merits.
Factual Background and Analysis of the Dyson v. Dreame decisions
First case Dyson v. Dreame and referral questions to the CJEU
Dyson sought a preliminary injunction based on EP 3 119 235 in force in the EU and in the UK, covering a hair-curling barrel styling attachment, a technology underlying the Dyson Airwrap, not only for the 18 UPC contracting member states but also for Spain, an EU member state that has not acceded to the UPCA.
The preliminary injunction application was directed against an allegedly infringing hairstyling product of the Dreame group (Dreame Product I). The defendants included Dreame International Limited (Dreame), the Hong Kong-based manufacturer of Dreame Product I and operator of several similar websites offering this product, German and Swedish distribution companies, and, crucially, Dreame’s European authorised representative Eurep GmbH (Eurep), a Germany-based company. Such authorised representatives serve as a liaison between non-EU manufacturers and national or EU authorities, ensuring compliance with EU regulations such as those required for CE certification, but they are not themselves involved in the commercial placing of products on the market.
The LD Hamburg granted the preliminary injunction against Dreame and Eurep and extended it to the territory of Spain. The LD Hamburg decided
- in line with previous UPC decisions on long-arm jurisdiction (and CJEU in “BSH v. Electrolux”) that the UPC has international jurisdiction over Eurep´s alleged infringing activity in Spain according to Article 4 Brussels Ia because Eurep is based in Germany;
- that Eurep, by providing its legal services to Dreame, acted as an “intermediary whose services are used by the alleged infringer” and is thus liable for Dreame’s infringement according to Article 62 UPCA;
- that it also has jurisdiction over Dreame’s infringing activities in Spain under Article 8(1) Brussels Ia because the Spanish claims against the intermediary and anchor defendant Eurep on the one hand and the Spanish claims against Dreame on the other hand are so closely related that separate proceedings would risk irreconcilable decisions.
Upon appeal of Dreame and Eurep the CoA stayed the proceedings regarding Dreame’s acts in Spain and Eurep’s substantial liability in the UPC territory and Spain, and referred the following questions to the CJEU (summarized by the author; for the original wording, see the order for reference itself):
1) Whether UPC jurisdiction over a third-state defendant for acts in a non-UPC state (cross-border jurisdiction) can be established under Art 8(1) Brussels Ia if the co-defendant based in a UPC member state (possible “anchor defendant”) is only sued as an alleged intermediary whose services are used by the third-state defendant to infringe an EP in the non-UPC state.
The CoA was not convinced that the LD Hamburg’s analysis, which qualified Eurep as anchor defendant for Dreame, was correct. Companies based outside the UPC territory (such as Dreame) can only be sued before the UPC for cross-border activities if a company within the court’s jurisdiction is sued simultaneously as an “anchor defendant” within the meaning of Article 8(1) Brussels Ia. The CoA therefore identified the critical question: Is an EU representative, undisputedly not involved in any infringing activity itself and acting solely to ensure regulatory compliance, sufficient to serve as such an anchor defendant? Unlike the legal position of a co-infringer, the representative’s legal position is entirely dependent on that of the alleged principal infringer (here: Dreame). An injunction against such an intermediary would only be warranted if the principal infringer whose services it provides is found to have infringed, but the converse does not necessarily follow.
2) If the answer to the first question is negative: Does such cross-border jurisdiction of the UPC arise for patent infringements by a third-state defendant in non-UPC states (e.g. Spain) under the given circumstances, at least for granting interim measures under Article 71b(2) Brussels Ia, in particular where the third-state defendant offers the same product via virtually identical websites both within and outside UPC territory, or where, in committing the infringement in a non-UPC state, it avails itself of the assistance of a company established within UPC territory?
The Court of Appeal also has doubts on this point. It could be argued that there is a close connection between Dreame’s contested conduct within UPC territory and in Spain, which is a prerequisite for applying Article 71b(2) Brussels Ia. However, it seems doubtful that Article 71b(2) Brussels Ia was intended by the Union legislator to confer international jurisdiction on the UPC to grant interim measures outside UPC territory.
3) Does Article 9(1)(a) of Directive 2004/48 (European Enforcement Directive) or any other provision of Union law preclude the UPC from granting interlocutory injunctions against an authorised representative who performs regulatory services on behalf of a third party infringing a patent?
The CoA expressed doubts as to whether an authorised representative who – as in the present case, Eurep – merely ensures compliance with certain regulatory laws on behalf of an importer of patent-infringing products not established in the EU, without making any actual contribution to the patent infringement, can be classified as an intermediary within the meaning of Article 9(1)(a) of the European Enforcement Directive or Article 62 of the UPCA.
Second case Dyson vs. Dreame
Exactly one day after the CoA’s referral, the LD Hamburg had to decide on a second preliminary injunction request brought by Dyson on the basis of the same EP against a different product line of Dreame (Dreame Product II).
Again, Dyson requested a preliminary injunction covering the UPC territory and Spain and the UK. This time, however, Dyson did not sue Eurep in addition to Dreame but
- the UK exclusive distributor and importer of Dreame Product II and
- a Dutch affiliate of Dreame with the dual role of importing Dreame Product II into the EU and acting as Dreame’s authorised representative for Dreame Product II in the EU.
Jurisdiction for acts in the UPC territory and Spain
The LD Hamburg granted the preliminary injunctions for the UPC territory and Spain against Dreame and its Dutch affiliate, confirming that under these circumstances the CoA’s referral had no bearing on the outcome.
The UPC’s international jurisdiction over patent-infringing acts of the Dutch affiliate in the UPC territory and Spain follows from Article 4 Brussels Ia, as the Dutch affiliate is based in UPC territory. Jurisdiction over acts of Hong Kong-based Dreame in the UPC territory follows from Article 7(2) Brussels Ia. Jurisdiction over Dreame’s acts in Spain follows from Article 8(1) Brussels Ia because the Dutch affiliate can serve as an anchor defendant. The allegedly infringing acts of importing into the EU, including Spain (Dutch affiliate), and marketing the same product in the EU, including Spain (Dreame), are so closely related that separating the Spanish action against the Dutch affiliate from the Spanish action against Dreame would risk irreconcilable decisions within the meaning of Article 8(1) Brussels Ia. This differs from the situation in the first case between Dreame and the mere intermediary Eurep, which led to the CoA’s referral to the CJEU.
Jurisdiction for acts in the UK
The LD Hamburg also accepted international jurisdiction for potentially infringing acts of the NL-based Dutch affiliate in the UK under Article 4 Brussels Ia. Although the Dutch affiliate was not responsible for imports into the UK, in its role as EU authorised representative it was arguably responsible for ensuring that UK products could be distributed in Northern Ireland. The reason for this is that, in order to avoid a hard border between Ireland (EU) and Northern Ireland (UK) following Brexit, EU regulations on product safety and market surveillance continue to apply in Northern Ireland.
However, in the view of the Hamburg LD, this function of the Dutch affiliate – which was only coincidentally related to the UK – was not sufficient to qualify it as the anchor defendant for the exclusive UK distributor of Dreame Product II, thereby establishing cross-border jurisdiction also over this UK distributor and its patent-infringing acts in the UK pursuant to Article 8(1) Brussels Ia.
What Does This Mean in Practice?
The CJEU’s answers will fundamentally shape the UPC’s role as a pan-European enforcement forum. The practical implications depend on how the CJEU rules:
- For patent holders, an affirmative answer to Question 4 in the original referral (Question 3 in our summary) would be particularly significant: enjoining an EU representative would, in commercial terms, prevent a non-EU manufacturer from legally placing products on the entire EU market, as such a representative is a regulatory necessity in many product categories. This would give patentees a powerful tool where no EU-based importer or distributor can be identified as an anchor defendant.
- For EU authorised representatives, the referral is a meaningful signal. A ruling that they can be enjoined as intermediaries would fundamentally change the risk profile of accepting mandates from non-EU manufacturers. Companies in this space should consider requiring indemnification clauses from their principals for costs associated with potential patent litigation in which they may be involved.
- For non-EU manufacturers, one currently viable strategy may be to domicile their EU representative in a non-UPCA member state, such as Spain or Poland, so that the representative cannot serve as an anchor defendant for UPC proceedings.
The UPC’s long arm is outstretched, and the CJEU will determine how far it can reach. In the meantime, market participants face uncertainty over the next two to three years, as any decision is unlikely before the Court has carefully deliberated the issues.
