Barco N.V. v Yealink (Xiamen) Network Technology Co. Ltd. and Yealink (Europe) Network Technology B.V., UPC, Court of Appeal, 17 April 2025 Case no. UPC_CoA_329/2025
On 17 April 2025, the UPC Court of Appeal denied an application by Barco N.V. for suspensive effect of the order of the Brussels Local Division (LD) dated 21 March 2025 dismissing Barco’s application for a preliminary injunction and other provisional measures against Yealink.
The proceedings concern the alleged infringement by Yealink of Barco’s patent relating to methods, devices and systems for making functional devices available to participants of meetings (EP 3 732 827). Barco had sought a preliminary injunction against Yealink, however, its application before the Brussels LD was refused due to lack of urgency on the part of Barco. In dismissing Barco’s application, the Brussels LD ordered that Barco bear the reasonable and proportionate legal costs and other expenses incurred by Yealink in the proceedings, up to the applicable ceiling (set by the Administrative Committee’s Scale of ceilings for recoverable costs).
Barco appealed the order of 21 March 2025, and brought an application before the Court of Appeal for suspensive effect of the order pursuant to Rule 223.3 of the Rules of Procedure (RoP) pending the outcome of the appeal. While Barco’s position is that it has not been ordered to reimburse Yealink a certain amount, Yealink is of the view that Barco has been ordered to pay the sum of €112,000 to Yealink as an interim award.
In support of its application, Barco argued that the March 2025 order was not enforceable, and that the order merely ordered Barco to bear reasonable and proportionate legal costs and other expenses up to the relevant ceiling under the scale of ceilings for recoverable costs. In Barco’s view, the order did not require Barco to pay Yealink a certain amount, and that a final decision on costs cannot be issued in an order on provisional measures, but only in proceedings on the merits, or in separate costs proceedings. In the event that the Court of Appeal considered that Barco is required to pay Yealink, Barco sought an order for suspensive effect.
Barco argued that if the costs order of 21 March 2025 was executed, the appeal would be rendered ineffective due to alleged difficulties in reversing the consequences of the decision. In that regard, Barco submitted that due to difficulties in enforcing judicial decisions in China, where the first defendant, Yealink (Xiamen) is based, Barco would not be able to recover the sum paid to Yealink in the event that the March 2025 decision was reversed. Moreover, Barco argued that Yealink (Europe), based in the Netherlands, is merely a shell company and therefore, its existence does not change that costs would not be recoverable.
Yealink argued that the Brussels LD order was directly enforceable from the date of service, and was an interim award within the meaning of Rule 211.1(d) of the RoP.
In considering Barco’s application, the Court of Appeal observed that Article 74(1) of the UPC Agreement provides that an appeal does not have suspensive effect, unless decided otherwise by the Court of Appeal. In deciding whether the circumstances can justify an exemption from this principle, the Court of Appeal must examine whether the appellant’s interest in maintaining the status quo pending a decision on the appeal outweighs the respondent’s interests. In accordance with UPC case law, such circumstances may exist where the appealed order or decision is manifestly wrong, or if the appeal without suspensive effect becomes devoid of purpose. In this case, the Court of Appeal found that Barco had failed to show that there was a manifest error (i.e., an outcome or assessment which proves to be untenable already on the basis of a summary assessment) in the order of the Brussels LD dated 21 March 2025, and that the problems with enforcement advanced by Barco did not make the appeal devoid of purpose. Accordingly, the Court of Appeal refused Barco’s application for suspensive effect.
In light of the Court of Appeal’s decision, it appears that Barco may be in the position of having to pay costs to Yealink, notwithstanding that a decision on the merits of the proceedings has not yet been made.
The order of the Court of Appeal can be read here.
