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The "long-arm" jurisdiction of the UPC over non-EU entities in respect of infringements in non-UPC territories, as well as the liability of European Authorised Representatives for patent infringement and their use as anchor defendants, is the subject of the UPC's first ever referral of questions of EU law to the CJEU, made on 6 March 2026 by the UPC Court of Appeal (CoA) in Dyson v Dreame and Eurep(UPC_CoA_789/2025, UPC_CoA_813/2025).
Background
In 2025, Dyson applied to the Hamburg Local Division (LD) of the UPC for a preliminary injunction (PI) against various Dreame entities: Dreame International, a manufacturer based in China (Hong Kong); both a Swedish and a German Dreame sale entity; and Dreame International's European Authorised Representative (EAR) Eurep (EU CE marking requires an EAR to be registered in relation to CE mark certification if manufacturers are based outside the EU) - all in respect of infringements in UPC territories and Spain (a non-UPC territory). The Hamburg LD held (Dyson v Dreame (UPC_CFI_387/2025, 14 August 2025)) that it had jurisdiction over all these Dreame entities in respect of infringements in UPC territories and also in respect of infringements in Spain for all (including Dreame International on the basis of the anchor defendant Eurep). This order was appealed.
The CoA's decision
The CoA considered that it should refer questions of jurisdiction of the UPC over the third state (ie non-EU/EFTA) defendant Dreame International in respect of infringement in a non-UPC territory (Spain) and also on the liability of an EAR for patent infringement and the role of anchor defendants in jurisdiction over third state established defendants. These were matters of interpretation of the Brussels Regulation and the Enforcement Directive and thus of EU law, which the UPC may refer to the CJEU for interpretation. The CoA stayed the elements of the appeal relating to Dreame International's liability for infringement in Spain and in relation to Eurep generally as these were the elements of the action that were impacted by the issues being referred.
The fact that there was a referral in relation to certain elements of the action did not prevent the CoA from proceeding with its consideration of other aspects of the action that were not affected by the referral questions. Thus it did not stay the action in respect of the defendants domiciled within the EU/EFTA (the Swedish and German sales partners) and confirmed the elements of the LD's PI order covering infringement in the UPC territories and Spain by these parties. The CoA also confirmed the LD's PI in respect of Dreame International's infringement in UPC territories, just not Spain. The PI was also extended to cover further products which the CoA found to be infringing (but which the LD had not) in relation to all the Dreame entities (Chinese, Swedish and German) in UPC territories and the Swedish and German entities covering UPC territories and Spain also, which products the CoA found to be infringing.
Referral to the CJEU
As was noted in our recent UPC briefing (Two and a half years of the UPC – Trends and turning points), the UPC has thus far only established long-arm jurisdiction in first instance decisions. This case is the first of the long-arm jurisdiction decisions to come before the CoA (another jurisdiction-based appeal - Fujifilm v Kodak - is being heard at the end of March), and it is significant that the CoA has concluded that the question of the scope if the UPC's extra-territorial jurisdiction under EU law was sufficiently unclear as to give rise to a referral to the CJEU, as we predicted it might in our briefing.
The order for the referral from the CoA poses four questions:
"1. Must Article 8(1) in conjunction with Article 71b(2) of Regulation 1215/2012 be interpreted as meaning that a situation where, in proceedings before a common court within themeaning of Article 71a(2) of Regulation 1215/2012, a first company that is established in a third State is alleged to have committed an infringement of a national part of a European patent which is in force in an EU Member State that is not party to the instrument establishing the common court, and a second company that is established in an EU Member State that is party to the instrument establishing the common court is alleged to be an intermediary whose services are used by the first company to infringe in the EU Member State that is not party to the instrument establishing the common court, is capable of leading to "irreconcilable judgments" resulting from separate proceedings as referred to in Article 8(1) Regulation 1215/2012?
2. Must Article 71b(2), second sentence, of Regulation 1215/2012 be interpreted as meaning that a common court has jurisdiction in relation to an action for provisional measures against a company established in a third State that is alleged to have infringed a European patent in force in an EU Member State that is not party to the instrument establishing the common court, and in some or all EU Member States that are party to the instrument establishing the common court by offering the same products in all those EU Member States through websites that are identical apart from the language?
3. Is the fact that the company uses the services of a company that is established in an EU Member State that is party to the instrument establishing the common court in order to infringe a relevant circumstance in answering this second question?
4. Does Article 9(1)(a) of Directive 2004/48 or any other provision of Union law preclude case-law of a national or common court under which an interlocutory injunction aimed at preventing or prohibiting infringement of a patent by a third party by placing products on the market to which Regulation 2023/988 and 2019/1020 apply may be granted against an authorised representative that performs the tasks laid down in these Regulations on behalf of the third party?"
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