JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
26 June 2014 (*)
(Community trade mark — Opposition proceedings — Application for the Community word mark GULBENKIAN — Earlier well-known national mark, company name and national logos Fundação Calouste Gulbenkian — Relative grounds for refusal — Evidence of the existence of the earlier rights — Article 8(1)(b), (4) and (5) of Regulation (EC) No 207/2009 — Article 90(a) of the Rules of Procedure)
In Case T‑541/11,
Fundação Calouste Gulbenkian, established in Lisbon (Portugal), represented by G. Marín Raigal, P. López Ronda, and G. Macias Bonilla, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by V. Melgar, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Micael Gulbenkian, residing in Oeiras (Portugal), represented by J. Pimenta and A. Sebastião, lawyers,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 15 July 2011 (Case R 1436/2010-2) relating to opposition proceedings between Fundação Calouste Gulbenkian and Mr Micael Gulbenkian,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,
Registrar: J. Plingers, Administrator,
having regard to the application lodged at the Court Registry on 10 October 2011,
having regard to the response of OHIM lodged at the Court Registry on 23 February 2012,
having regard to the response of the intervener lodged at the Court Registry on 16 February 2012,
having regard to the reply lodged at the Court Registry on 26 June 2012,
having regard to the decision of 20 August 2012 granting leave to the intervener, at his request, to plead in Portuguese at the hearing,
having regard to the written observations lodged by the applicant at the Court Registry on 25 April, 27 June and 26 August 2013,
having regard to the written observations lodged by OHIM at the Court Registry on 27 May and 2 October 2013,
having regard to the written questions put to the applicant by the Court,
having regard to the observations lodged by the applicant at the Court Registry on 10 January 2014,
further to the hearing on 13 February 2014, which the intervener, who was duly invited to appear before the Court, did not attend,
gives the following
Judgment (1)
…
Forms of order sought
20 Having regard to its answers to the written questions put to it by the Court and to the information that it provided at the hearing, of which formal note was taken, the applicant claims that the Court should:
– alter the contested decision by upholding its opposition in its entirety;
– in the alternative, annul the contested decision in so far as the Board of Appeal did not uphold its opposition;
– order OHIM and the intervener to pay the costs relating to the present proceedings, as well as to the opposition and appeal proceedings before OHIM.
21 OHIM and the intervener contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
…
Costs
48 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by OHIM and the intervener.
49 Article 90(a) of the Rules of Procedures provides that where a party has caused the General Court to incur avoidable costs, the General Court may order that party to refund them.
50 In accordance with that provision, the intervener must be ordered to refund the interpreting costs occasioned by his request to be allowed to plead in Portuguese at the hearing, which he did not attend. Those costs, which were in fact borne by the Court of Justice of the European Union, and consist of the remuneration, daily allowance, travel and accommodation expenses of the free-lance interpreter used by the General Court, amount to EUR 1 807.48 in total.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Fundação Calouste Gulbenkian to pay the costs;
3. Orders Mr Micael Gulbenkian to refund to the Court of Justice of the European Union the sum of EUR 1 807.48 in accordance with Article 90(a) of the Rules of Procedure of the General Court.
Frimodt Nielsen | Dehousse | Collins |
Delivered in open court in Luxembourg on 26 June 2014.
[Signatures]