ORDER OF THE GENERAL COURT (Third Chamber)
6 March 2014(*)
(Procedure – Taxation of costs)
In Case T‑544/11 DEP,
Spectrum Brands (UK) Ltd, established in Manchester (United Kingdom), represented by S. Malynicz, Barrister,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by G. Schneider and A. Folliard‑Monguiral, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Koninklijke Philips Electronics NV, established in Eindhoven (Netherlands), represented by L. Alonso Domingo, lawyer,
APPLICATION for taxation of costs to be reimbursed by the applicant to the intervener following the judgment of the General Court of 16 January 2013 in Case T‑544/11 Spectrum Brands (UK) v OHIM – Philips (STEAM GLIDE), not published in the ECR,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N. J. Forwood (Rapporteur) and E. Bieliūnas, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 12 October 2011, the applicant, Spectrum Brands (UK) Ltd, brought an action for the annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 July 2011 (Case R 1289/2010-1), relating to invalidity proceedings between Koninklijke Philips Electronics NV and Spectrum Brands (UK) Ltd.
2 The intervener, Koninklijke Philips Electronics NV, intervened in the dispute to request that the action be dismissed and the applicant be ordered to pay the costs.
3 By judgment of 16 January 2013 in Case T‑544/11 Spectrum Brands (UK) v OHIM – Philips (STEAM GLIDE), the Court dismissed that action as unfounded and ordered the applicant to pay the costs.
4 The intervener requested the applicant to pay the recoverable costs relating to the proceedings before the Court, which it calculated at EUR 17 601.47, and provided a detailed overview thereof and supporting documents. Following an exchange of letters, no agreement could be reached between the parties as to the amount of recoverable costs.
5 By application lodged at the Court Registry on 23 August 2013, the intervener lodged, pursuant to Article 92(1) of the Rules of Procedure of the General Court, an application for taxation of costs by which it requested the Court to fix the amount of the recoverable costs, for payment of which the applicant was liable, at EUR 21 301.47, that is to say EUR 2 500 in respect of the proceedings before OHIM; EUR 17 601.47 in respect of the main proceedings before the General Court; and EUR 1 200 in respect of these proceedings for the taxation of costs.
6 By document lodged at the Court Registry on 20 November 2013, the applicant submitted its observations on that application for taxation of costs.
Law
7 As provided in Article 92(1) of the Rules of Procedure of the General Court, if there is a dispute concerning the costs to be recovered, the General Court hearing the case, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal lies.
8 According to Article 91(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers are regarded as recoverable costs. It is settled case‑law that it follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, second, to those which are necessary for that purpose.
9 According to Article 136(2) of the Rules of Procedure, in disputes relating to intellectual property rights, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are, however, also regarded as recoverable costs.
10 According to settled case‑law, the Courts of the European Union are authorised, not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs (see order of 31 March 2011 in Joined Cases T‑5/02 DEP and T‑80/02 DEP Tetra Laval v Commission, not published in the ECR, paragraph 55 and the case‑law cited).
11 It has also consistently been held that, in the absence of any provisions of European Union law relating to tariffs, the Court must freely assess the details of the case, taking account of the subject-matter and the nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved and the economic interests which the dispute represented for the parties (see order in Tetra Laval v Commission, paragraph 56 and the case‑law cited).
12 Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of the costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (see order in Tetra Laval v Commission, paragraph 54 and the case‑law cited).
13 The amount of the costs recoverable in the present case must be determined according to those criteria.
14 In the first place, the Court notes that the case in the main proceedings concerned invalidity proceedings against an application for a Community mark which was not, as regards its purpose and nature, of any particular complexity and which was in the context of ordinary trade mark litigation concerning absolute grounds for refusal of registration under Article 7(1)(c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) and Article 7(1)(c) of that regulation. In that regard, it essentially concerned the application of settled case‑law to the particular circumstances of the case. As is apparent from reading the judgment in STEAM GLIDE, that case involved neither a new question of law nor a complex question of fact and cannot therefore be considered to be particularly difficult, even though the mark declared invalid had initially been accepted for registration and the application for a declaration of invalidity was first of all rejected by the Cancellation Division of OHIM.
15 In the second place, the Court finds that, whilst the case was admittedly of financial interest to the intervener, without concrete evidence adduced by the latter, that financial interest cannot be regarded as being unusual or significantly different from that which underlies any invalidity proceedings against an application for a Community trade mark.
16 In the third place, so far as concerns the extent of the work generated by the proceedings for the intervener’s lawyer, it should be borne in mind that it is for the Courts of the European Union to take account of the work objectively required for the whole of the judicial proceedings (order in Tetra Laval v Commission, paragraph 67 and the case‑law cited). Moreover, it must be stressed that the possibility for the Courts of the European Union to assess the value of the work depends on the degree of precision of the information supplied (order in Tetra Laval v Commission, paragraph 68 and the case‑law cited).
17 In the present case, so far as concerns, first, the costs relating to the proceedings before the Board of Appeal, the amount of EUR 2 500 claimed in that regard by the intervener, as per the Board of Appeal’s decision on costs, is not challenged by the applicant. However, the intervener already has the status to recover that amount, if necessary through enforcement proceedings, since the contested decision of the Board of Appeal became final following the dismissal of the action for annulment of that decision and the expiry of the time‑limit for lodging an appeal against the judgment of the General Court. Accordingly, the costs relating to the proceedings before the Board of Appeal should not be taxed again.
18 With regard, second, to the costs relating to the main proceedings before the Court, it should be noted that the written procedure consisted of a single round of written submissions and that a hearing was held on 16 October 2012. The document in Annex 3 to the application for taxation of costs details the services provided in that regard by the lawyer instructed by the intervener, including the calculation of time spent on the case, the precise nature of the services provided, the hourly rate and the disbursements. Invoices and other supporting documents are found in Annex 4 to that application.
19 It is apparent, on the one hand, that the intervener’s lawyer spent 21.30 hours analysing the application and preparing the statement of written observations and a total of 33.40 hours preparing for and taking part in the hearing. Those hours are charged at an hourly rate of EUR 350, that is to say EUR 16 273.25 in total, after a 15% discount. Even though the hourly rate charged may be considered to be reasonable for that type of dispute, the number of hours invoiced appears to be excessive given the lack of complexity of the case and the prior knowledge of the case acquired by the intervener’s lawyer from participating in the proceedings before the Board of Appeal. It must be observed, in that regard, that the fees in the amount of EUR 16 273.25 charged in relation to the proceedings before the Court are disproportionate to the costs in the amount of EUR 2 500 awarded to the intervener by the Board of Appeal relating to the proceedings before the departments of OHIM.
20 It is clear, on the other, that the disbursements of the lawyer instructed by the intervener consist of the costs of translating documents into the language of the case in the amount of EUR 147.85, postal costs in the amount of EUR 95.94, costs of travel by air between Madrid (Spain) and Luxembourg (Luxembourg) in the amount of EUR 738.63 and accommodation and travel costs in Luxembourg in the amount of EUR 345.80. Those amounts appear, on the whole, to be reasonable and evidenced by invoices, as the applicant acknowledges in its written observations.
21 So far as concerns, third, the costs relating to the taxation of costs proceedings, the sum of EUR 1 200 claimed in that regard by the applicant appears to be excessive in the absence of a detailed statement of costs and supporting documents, and in the light of the brevity of the application for taxation of costs (only four pages).
22 In the light of all the foregoing, the Court considers that the costs recoverable by the intervener in respect of the procedure before the Court will be fairly assessed by taxing their amount at EUR 9 000, which takes account of all the circumstances of the case up to the date of this order.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
The total amount to be reimbursed by Spectrum Brands (UK) Ltd to Koninklijke Philips Electronics NV in respect of the proceedings before the Court is fixed at EUR 9 000.
Luxembourg, 6 March 2014.
E. Coulon | S. Papasavvas
Registrar | President |