UPC Court of Appeal Pushes for Clarity on “Anchor Defendant” Jurisdiction
In February 2025, the Court of Justice of the European Union (CJEU) significantly expanded the reach of Europe’s Unified Patent Court (UPC) through its landmark decision in BSH Hausgeräte v. Electrolux, which confirmed in part that the UPC may decide infringement claims arising in non-UPC countries against defendants domiciled in UPC states. That August, in Dyson v. Dreame, the UPC’s Hamburg Local Division (Hamburg LD) then took BSH a step further by endorsing the concept of an “anchor defendant”—under which the UPC has jurisdiction over acts of non-UPC infringement from an entity not based in a UPC country as long as another codefendant from the same “company group” is based within the UPC. On March 6, the UPC Court of Appeal took the notable step of referring the relevant portion of that case to the CJEU—the first time the UPC has ever made such a referral. Then, on March 13, the Court of Appeal ruled in another case that the UPC lacks jurisdiction over non-UPC infringement where no related codefendants are based in the UPC (i.e., where there is no anchor defendant).
BSH Removed Practical Barrier to Cross-Border Litigation
The BSH decision removed a key hurdle that as a practical matter limited cross-border litigation in the EU for both the UPC and national courts—Article 24(4) of the Recast Brussels Regulation (the framework that provides unified rules for international jurisdiction within the EU), which provides that national courts in EU member states have exclusive jurisdiction over validity actions. Article 24(4) was previously understood to require that when an EU member state was seized with an infringement action over a patent issued in another member state, it had to stay the case when the validity of the foreign patent was challenged. Thus, defendants could prevent cross-border infringement claims from proceeding by filing a defensive validity challenge.
BSH provided that a stay is no longer required, giving courts the leeway to do so if the validity challenge is reasonably likely to succeed. The CJEU also held that the UPC, and member states, may rule on the validity of patents in non-EU countries not subject to special rules similar to Article 24(4), though those validity decisions are merely inter partes (i.e., they only impact the parties to the case at hand) and may not result in the removal of a patent from the registry of the country of issuance.
The upshot of BSH is that the UPC and national courts in EU countries may now award damages and/or impose injunctions for the infringement of non-EU patents as long as the defendant is domiciled in one of the 18 countries participating in the UPC (for UPC litigation) or in the EU more broadly (for national court litigation).
A deep dive on BSH is available here: “CJEU’s Long-Arm Jurisdiction Ruling Could Shake Up Enforcement Strategies in Europe” (March 2025).
Dyson v. Dreame: Court of Appeal Refers Questions on Anchor Defendant Jurisdiction to CJEU
The Dyson case involved claims of infringement over hair curling devices competing with patent owner Dyson’s Airwrap product. Dyson named four entities from the Dreame Group as defendants, the domiciles and roles of which bear directly on the Hamburg LD’s decision: Dreame International (Hongkong) Limited, a Hong Kong-based entity that manufactures the accused products; Teqphone GmbH, an entity based in Germany (a UPC state) that serves as Dreame’s “Official Distributor”; Eurep GmbH, Dreame’s “Authorized Representative”, the designation of which is required under EU product safety law for a non-EU company to sell products in the EU, also based in Germany; and Dreame Technology AB, another affiliate that runs a Sweden-specific website and retail store and is based in Sweden (also a UPC country).
On August 14, 2025, the Hamburg LD granted plaintiff Dyson’s request for provisional measures (i.e., a preliminary injunction) against the defendants with respect to UPC territories as well as Spain, an EU nation that did not join the UPC—marking the UPC’s second application of BSH, its first to do so in the context of provisional measures, and its first injunction hitting Spain. The court granted the request only as to a subset of the accused products, finding that the older Dreame Airstyle and Dreame Pocket, but not the newer Dreame Airstyle Pro and Dreame Pocket Neo, infringed the asserted claims.
In that decision, the Hamburg LD held in relevant part that it could exercise jurisdiction over claims arising in Spain through codefendant Eurep, finding that because its role as the EU authorized representative is required to sell the accused products in the EU, Eurep was an essential party. As a result, it held that Eurep could be subjected to an injunction as an “intermediary” under both the applicable EU laws as well as Spanish patent law.
Furthermore, of particular relevance here, the Hamburg LD held that Eurep could serve as an “anchor defendant” such that the UPC’s jurisdiction also covers Dreame International, the Hong Kong entity making the infringing products. That jurisdiction, the court ruled, stems from Article 8(1) of the Recast Brussels Regulation, which conveys “universal” jurisdiction over any defendant when at least one codefendant is domiciled in a member state (here, the UPC) as long as the claims against them are sufficiently “closely connected” such that deciding the claims together avoids the risk of irreconcilable judgments. For such jurisdiction to apply, the Hamburg LD further explained, the anchor defendant must be domiciled in the forum state (here, Germany) and must have allegedly acted in a non-EU country (here, Spain). These requirements were all satisfied here, the court found, because the framework creating the authorized representative requirement establishes a “necessary, legally established close connection between” authorized representative Eurep and manufacturer Dreame International.
The parties both appealed, with Dyson seeking to extend the injunction to the newer Dreame products and Dreame seeking to set aside the entire order.
The Court of Appeal issued two decisions stemming from that appeal on March 6. In one, Dyson prevailed in its challenge of the court’s order with respect to UPC territories, with the court extending the provisional measures to include the newer Dreame products.
However, in the other, the Court of Appeal stayed the appeal with respect to the “action against Dreame International, to the extent that it relates to the territory of Spain”; and “the action against Eurep”—determining that “these parts of the case raise questions concerning the interpretation of EU law” that it must refer to the CJEU. As noted above, this is the first time that the UPC has ever referred a question of law to the CJEU.
Three of those referred questions relate to jurisdiction over claims against Dreame International arising in Spain.
The first is whether the UPC may “derive” its jurisdiction over those claims against Dreame International through its jurisdiction over Eurep (for which jurisdiction is not separately contested). “More specifically”, the Court of Appeal asks the CJEU to determine whether, when a first company based in a non-UPC, non-EU country is alleged to infringe a patent issued in a non-UPC EU country (here, Dreame International), and a second company based in a UPC country is “alleged to be an intermediary whose services are used by the first company to infringe” in a non-UPC, non-EU country (here, Eurep), this can create a risk of “irreconcilable judgments” from separate proceedings (as covered by Article 8(1), as detailed above; as read with Article 71b(2) of the Recast Brussels Regulation, which broadly speaking gives common courts the power to hear claims of infringement arising in non-EU countries) such that the claims should be heard together. If the CJEU were to answer this question in the affirmative, the Court of Appeal explains, the UPC would thus have jurisdiction over claims against Dreame International arising in Spain.
If it answered in the negative, then the second referred question arises: Whether the second sentence of Article 71b(2) (addressing common courts’ power to grant provisional injunctions, even where the courts of a non-EU country have jurisdiction) gives the UPC jurisdiction where a non-EU company (here, Dreame International) is alleged to infringe a European patent in force in a non-UPC EU country and in some UPC countries by offering the same products in all of those EU member states using websites that are identical apart from language. The Court of Appeal further asks (as a related, but separate, third question) if, in answering that second question, it is relevant whether the aforementioned non-EU defendant “uses the services of a company” based in a UPC country (here, Eurep) “in order to infringe”.
The fourth referred question asks whether a company in Eurep’s position—that is, a company that is designated as an “Authorized Representative” under EU product safety regulations, and performs the functions required by those regulations for a third party (here, Dreame International) offering allegedly infringing products falling under those regulations—is properly considered that third party’s “intermediary” under EU law, and thus may be subjected to an injunction.
The answers to these questions may not come for a few years: Law firm Marks & Clerk has observed that the referral in BSH “took nearly three years”, and that as a result the issues referred here by the UPC here may not be resolved until 2028-2029.
Further details on the Hamburg LD’s Dyson v. Dreame decision is available here: “UPC Further Expands Reach with First Injunction Covering Spain” (August 2025).
Keeex v. Adobe, OpenAI, and Truepic: No BSH Jurisdiction Outside EU Without Anchor Defendant
In the meantime, the Court of Appeal has since issued another decision clarifying the limits of BSH in litigation filed by Keeex against Adobe, OpenAI, and Truepic. In that case, filed with the Paris Local Division (Paris LD), the plaintiff sought injunctions and damages spanning eight UPC member states (Austria, Belgium, Denmark, France, Germany, Italy, the Netherlands, and Sweden) but also in eight non-UPC countries (Ireland, which has signed but not yet ratified the UPC Agreement; Liechtenstein; Norway; Poland; Spain; Switzerland; Turkey; and the UK). Notably, none of the defendants are based in UPC territories: all of the defendant entities in suit are domiciled in the US, apart from two Adobe and OpenAI entities that are based in Ireland.
In November 2025, the Paris LD rejected the defendants’ jurisdictional objections, holding (reviewed here based on a machine translation from the original French) that BSH conveys long-arm jurisdiction not just based on where a defendant is domiciled, under Article 4 of the Recast Brussels Regulation; but also based on where the “harmful event” at issue occurred, under Article 7(2) of that same regulation.
The Court of Appeal soundly rejected this reasoning in its March 13 decision on appeal (also reviewed and quoted here based on a machine translation), holding that the Paris LD’s reasoning was “erroneous and based on an incorrect interpretation of the applicable law”. To the contrary, the Court of Appeal ruled that the UPC’s jurisdiction under Article 7(2) “is limited to the territory of the UPC”, thus setting aside the portions of the case based on infringement in the eight aforementioned non-UPC states. Unlike in the Dyson v. Dreame litigation, the Court of Appeal referred no questions to the CJEU.
