ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE COURT OF FIRST INSTANCE
6 March 2008 (*)
(Removal from the register)
In Case T-126/07,
Allos Walter Lang GmbH, established in Mariendrebber (Germany), represented by H. Heldt, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by O. Montalto, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance, being
Kokoriko SA, established in Bogota D.C. (Colombia), represented by T. Villate Consonni and J. Calderón Chavero, lawyers,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 16 February 2007 (Case R 1047/2006-2) relating to opposition proceedings between Kokoriko SA and Allos Walter Lang GmbH.
1 By letter lodged at the Registry of the Court of First Instance on 29 November 2007, the applicant informed the Court, in accordance with Article 99 of the Rules of Procedure of the Court of First Instance, that it wished to discontinue proceedings. It sought no order as to costs.
2 By letter lodged at the Registry of the Court on 17 December 2007, the defendant informed the Court that it had no objections to the discontinuance and requested that the applicant be ordered to pay the costs.
3 By letter lodged at the Registry of the Court on 13 December 2007, the intervener informed the Court that it had no objections to the discontinuance and requested that the applicant be ordered to pay the costs of the proceedings, including the proceedings before the Opposition Division and the Board of Appeal of OHIM.
4 The first subparagraph of Article 87(5), of the Rules of Procedure provides that a party who discontinues or withdraws from proceedings shall be ordered to pay the costs, if they have been applied for in the observations of the other party on the discontinuance. In the present case, the defendant as well as the intervener applied for the applicant to pay the costs.
5 Further, under Article 136 (2) of the Rules of Procedure costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal shall be regarded as recoverable costs.
6 In the present case, the Second Board of Appeal of OHIM, having dismissed, in the contested decision, the applicant’s appeal, ordered the applicant to pay the costs incurred by the intervener for the purposes of the proceedings both before the Opposition Division and before the Board of Appeal itself, and fixed the amount of those costs (point 21 of the grounds of the contested decision and point 2 of its operative part).
7 In view of the above, the form of order as to costs sought by the intervener, to the extent that it concerns the costs incurred by it before the Opposition Division and before the Board of Appeal, must be understood as requesting the Court not to call in question the points of the contested decision, cited above, which deal with costs. However, since the applicant has withdrawn its appeal before the Court, the contested decision remains valid, including the part relating to costs (see, to that effect, Case T-277/04 Vitakraft-Werke Wührmann/OHMI – Johnson’s Veterinary Products (VITACOAT) [2006] ECR II‑2211, paragraph 76), and there is no need for the Court to make an order as to costs before the OHIM.
8 In any case, it follows from Article 136 (2) of the Rules of Procedure that the Court cannot, under any circumstances, award to a party, as part of the recoverable costs, the costs incurred by that party in relation to proceedings before the Opposition Division of OHIM. Such a form of order would, indeed, be inadmissible (Case T-3/04 Simonds Farsons Cisk/OHMI - Spa Monopole (KINJI by SPA) [2005] ECR II‑4837, paragraph 78).
9 In those circumstances, the case will be removed from the register and the applicant ordered to bear, in addition to its own costs, the costs of OHIM as well as those of the intervener before the Court of First Instance.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Case T-126/07 is removed from the register of the Court of First Instance.
2. Orders the applicant to bear its own costs, and pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and the intervener before the Court of First Instance.
Luxembourg, 6 March 2008.