UPC Local Division: Service

The applicant files infringement action against 5 related companies; defendant 1 and 2 are based in China, defendant 3 in the Netherlands, defendant 4 in Germany and defendant 5 in Taiwan. The claimant argues that service on defendant 1 should be effected through defendant 4 in Germany, as this company establishes a place of business for defendant 1 and 2 in accordance with R 271.5(a) of the RoP, since any place set up for a period of time from which business is transacted is sufficient to establish a place of jurisdiction. The defendant further argues that the action concerns the activities of the aforementioned German branch. The company's business activities include the import, distribution and sale of smartphones and smart home solutions (including online), as well as customer service and the operation of a customer center. The Court does not follow this argument and points out that R 274.1 (b) RoP illustrates the hierarchy of the provisions for service. Accordingly, service must be effected in accordance with R 274(a)(ii) RoP under the Hague Service Convention, since the People’s Republic of China is not covered by the EU Service Regulation, but is a party to the Hague Service Convention. Alternatively, service is to be effected through diplomatic or consular channels in accordance with R 274(a)(iii) RoP, since no agreement is in place with Taiwan. Formal service of documents on the defendant is an internationally recognized principle and not a superfluous formality. It gives the recipient the opportunity to take note of the application and prepare their defense. Pursuant to Art. 24(1)(d) UPCA, the Court is bound by international agreements. The provisions of the EU Service Regulation and the Hague Service Convention and their priority under R 274.1(b) RoP cannot be overridden by R 271.5 RoP. An attempt at service and actual transmission in accordance with the provisions of the Hague Convention or national rules on service through diplomatic or consular channels are indispensable prerequisites for a substantive decision (Hamburg Local Division, UPC April 18, 2024, CFI 169/2024).