In UPC_CFI_553/2025 (Hamburg Local Division, Court of First Instance, 20 May 2026), the Court addressed when penalty payments may be imposed for alleged non-compliance with a UPC cease-and-desist order. The decision is practically relevant for defendants seeking to “switch off” online marketing after an injunction, especially where content is disseminated via third-party platforms.
Background
Occlutech GmbH (applicant) sought penalty payments under Art. 82(4) UPCA and Rule 354.4 RoP for alleged breaches of a prior “Final Order” (21 October 2025) issued in preliminary measures proceedings. That order required the defendants (Lepu Medical entities in China and the Netherlands) to cease and desist from marketing/using/offering certain braided occlusion devices in specified UPC Contracting Member States (including Germany, France, Italy, the Netherlands and Ireland). The applicant alleged continued “offering” through (i) the defendants’ own website and (ii) the MedicalExpo platform, and challenged the effectiveness of disclaimers and other compliance steps.
Key findings of the decision
General enforcement principles. The Court confirmed that penalty payments are not automatic: a claimant must request them, and the Court fixes the amount case-by-case (paras 30–31). It further held that an obligation to refrain from an act requires continuous and effective compliance measures until the order is lifted or superseded (paras 34–35).
Non-compliance via the defendants’ website. The Court treated the continued availability of product pages (with commercial features such as technical information, a prominent enquiry function and contact options) as capable of constituting an “offering” within the meaning of Art. 25 UPCA (paras 37–39). A temporary absence of a disclaimer was not excused by reliance on a website service provider: the defendant remained responsible for controlling third parties to whom it assigns tasks or grants the ability to modify content (para 40). On the facts, the Court found non-compliance for a defined period in which the site offered the products without an adequate disclaimer (para 41).
Non-compliance on a third-party platform (MedicalExpo). Participation in a marketing platform was not treated as a special case: it remained the defendant’s responsibility to ensure that content placed there complied with the order (paras 42–45). The Court rejected the view that geo-blocking and purchase-blocking mechanisms alone sufficed, noting that the order prohibited “offering” as such (para 43). Automated translation into German and the platform’s content enrichment features did not relieve the defendants of responsibility (para 45).
Disclaimers and subsequent communications. The Court held that disclaimers are generally insufficient where they are contradicted by other website content or later communications (para 46). It also relied on subsequent exchanges (including language inviting contact and suggesting commercial availability) when assessing whether the overall presentation still amounted to prohibited marketing/offering (paras 46–48).
Analysis and implications
The decision underlines that UPC compliance is assessed substantively: defendants must not only remove infringing offers, but also maintain an organisational and technical set-up that prevents reappearance (paras 34–35, 40). It also clarifies that using third-party platforms does not dilute responsibility; defendants should assume they must actively control listings, translations, and platform-generated content to ensure the injunction is respected (paras 40, 45). Finally, the Court’s approach to disclaimers suggests they will rarely cure non-compliance if the surrounding page elements retain a commercial call-to-action (para 46).
Conclusion
Hamburg Local Division ordered a penalty payment of EUR 58,800 and imposed a recurring daily penalty (up to EUR 1,500 per day) for future non-compliance, emphasising the need for uninterrupted, effective compliance and for defendants to control both their own websites and third-party marketing channels (paras 49–53; Order).
