AARKE AB v SODASTREAM Industries Ltd., Order of 16 January 2024

Background

In a dispute between Aarke AB, a Swedish company, and SodaStream Industries Ltd, an Israeli company, Aarke, as the defendant to infringement proceedings, successfully applied to change the language of the proceedings from German to English, the language in which the patent was granted. The court adopted a broad perspective on the application's admissibility (language and timing of filing) and considered, in particular, the applicant's SME status when weighing the interests of the parties involved.

Admissibility

SodaStream contended that the application was inadmissible because (i) it was not filed in the proceedings' current language and (ii) was filed separately from the statement of defence contrary to R. 323.1 RoP ("the party shall include such application … in the Statement of Defence …"). The Court dismissed these arguments. It found that the UPC Agreement and the RoP allowed the application to be filed in any language admissible in the relevant division and that the application could be filed at any time during the written proceedings (cf. R. 321 RoP). The court noted that restricting to a specific moment (here: the statement of defence) would contradict the court's principle of flexibility (preamble of the RoP, point 4). This broad interpretation of the timeframe is indeed reasonable because otherwise, a party would first have to draft the statement of defence in the language it wants to avoid.

The merits

The court granted the application. Regarding the legal standard, the court, citing previous case law (UPC_CFI_239/2023), reiterated that a language change, Art. 49 (5) UPCA, does not necessitate a disproportionate disadvantage concerning the interests at stake. It is sufficient if the language originally chosen is significantly disadvantageous to the applicant. The Court emphasised that in weighing the interests of the parties it was an important objective of the UPC to take into account the situation of SMEs, in particular when sued, in order to ensure fair access to justice for these entities. In the case of Aarke (annual turnover ~21.5 M EUR, 45 employees in 2022) and SodaStream (part of group of companies, one of the leading manufacturers and distributors of home drinking water sparkling systems, sales activity in 46 countries, portfolio of 65 patents, 198 trademark registrations) the court found that the position of the parties was indeed likely to create a significant imbalance in the way they could organise their defence and access to the court even though being equally confronted with a foreign language that they did not use in their daily activities (i.e., German). Also to note is that the Court explicitly did not take into account the judges' nationality and mother tongue in relation to the quality of the decision to be delivered, as SodaStream suggested. English would be an official language of the Division and the one most commonly used by the judges to communicate and work, as would be expected of users in any supranational environment.