Ballinno v Kinexon & UEFA (UPC_CoA_328/2024)
Decision date:
26 June 2025
Osborne Clarke summary
- Ballinno is the patent proprietor of a patent for a method and system for detecting offside play in football. Ballinno applied for provisional measures before the Hamburg LD. Kinexon and UEFA made a request for security for costs. The Hamburg LD granted the security for costs request, ordering Ballinno to pay €56,000. The court held that the facts pointed towards a risk of insolvency of Ballinno. It also took into account the fact that the patent had only recently been assigned to Ballinno before the UPC proceedings were commenced and many months after the assignor entered into pre-trial correspondence with Kinexon and UEFA. The court felt that this raised the concern that the purpose of the assignment might be to facilitate this litigation without financial risk to Ballinno. Ultimately, the Hamburg LD denied Ballinno's application for provisional measures and ordered Ballinno to pay the costs of the proceedings.
- Ballinno lodged an appeal against the security for costs order and the decision on provisional measures, but later made it clear it no longer requested provisional measures (the Paris CD had subsequently found Ballinno's patent invalid).
- The Court of Appeal upheld the Hamburg LD's decision to order Ballinno to provide security for costs. The facts before the Hamburg LD gave rise to a real concern that a cost order against Ballinno might not be recoverable by Kinexon and UEFA. The Court of Appeal noted that Ballinno did not bring forward any other evidence that negated this risk and Ballinno's SME status did not tip the weighing of interests. The Court of Appeal stated that the provision of security did not hamper Ballinno's access to justice, noting that national rules on security have been considered by the CJEU multiple times and have been held to be compatible with EU law.
- Prior to this decision, Ballinno had withdrawn its appeal on its request for provisional measures. This meant that this aspect of the appeal became devoid of purpose, there was no need to adjudicate on it and it was disposed of under Rule 360 RoP.
- It was not necessary for the Court of Appeal to examine the merits of this case to determine which party was unsuccessful and therefore had to pay the costs of the proceedings. The Court of Appeal held that if an action became devoid of purpose following a withdrawal of the main request by a party who took the inherent strategic risk that the urgent interest in the request could fall away before a final order was rendered, it was clear that if the request had not been withdrawn, the request would have been rejected for lack of urgent interest. As such, that party must be considered the unsuccessful party and consequently bear the costs of the proceedings. Accordingly, Ballinno was ordered to bear the costs of the proceedings on appeal.
Issue
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