ORDER OF THE GENERAL COURT (Seventh Chamber)
28 February 2012 (*)
(Procedure – Taxation of costs )
In Case T‑11/09 DEP,
Rahmi Özdemir, residing in Dreieich (Germany), represented by I. Hoes, M. Heinrich, C. Schröder, K. von Werder, J. Wittenberg and M. Fischer, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Aktieselskabet af 21. november 2001, established in Brande (Denmark), represented by C. Barrett Christiansen, lawyer,
APPLICATION for taxation of costs made by Aktieselskabet af 21. november 2001 following the judgment of the General Court of 23 February 2010 in Case T‑11/09 Özdemir v OHIM – Aktieselskabet af 21. november 2001 (James Jones), not published in the ECR,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By application lodged at the Court Registry on 14 January 2009, the applicant, Mr Rahmi Özdemir, brought an action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 November 2008 (Case R 858/2008-2) relating to opposition proceedings between Aktieselskabet af 21. november 2001 and the applicant.
2 The intervener, Aktieselskabet af 21. november 2001, intervened in the dispute in support of the form of order sought by OHIM to seek the dismissal of the action and an order that the applicant pay the costs.
3 By judgment of 23 February 2010 in Case T‑11/09 Özdemir v OHIM – Aktieselskabet af 21. november 2001 (James Jones), not published in the ECR, the General Court dismissed the action and ordered the applicant to pay the costs, on the basis of Article 87(2) of the Rules of Procedure of the General Court.
4 By letter of 21 April 2010, the intervener requested payment from the applicant of EUR 6 274 for the costs which it had incurred in the proceedings before the General Court. By letter of 5 May 2010, the intervener repeated its request for payment and, in order to reach an amicable agreement, proposed that the applicant pay the sum of EUR 4 566.
5 By letters of 23 April and 10 June 2010, the applicant refused to pay the costs incurred in the proceedings before the General Court.
6 By application lodged at the Court Registry on 5 July 2011, the intervener made a application for taxation of the costs under Article 92 of the Rules of Procedure, by which it asked the Court to set the amount of recoverable costs, to be paid by the applicant, at EUR 6 274.00, or, alternatively an amount less than EUR 6 274.00 at the Court’s discretion.
7 By document lodged at the Court Registry on 15 September 2011, the applicant contested that application.
Law
Arguments of the parties
8 The intervener submits that the total amount of costs which it incurred in connection with the proceedings before the Court is EUR 6 274. That sum is made up of lawyers’ fees amounting to EUR 6 168.26, corresponding to 30 hours of work, and disbursements (stamp duty and expenses to a public notary) totalling EUR 105.74.
9 The applicant argues that the application for taxation of costs is excessive and lacks transparency. He submits, in essence, firstly, that the invoice relating to lawyers’ fees is not detailed as it does not show how many hours have been billed to the intervener by its lawyer and at what rate and, secondly, that the application for taxation of costs does not include any documents proving the amount of the disbursements.
Findings of the Court
10 Under Article 92(1) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the General Court, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal lies.
11 Under 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 to be regarded as recoverable costs. It follows from that provision that recoverable costs are limited, firstly, to those incurred for the purpose of the proceedings before the General Court and, secondly, to those which were necessary for that purpose (see order in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13 and the case-law cited).
12 It is also established case-law that, in the absence of Community provisions laying down fee-scales, the Court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of European Union law as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (see the order in Airtours v Commission, paragraph 11 above, paragraph 18, and the case-law cited).
13 It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.
14 Firstly, it must be noted that the main action presented, as regards its purpose and nature, no particular complexity. This case concerned opposition proceedings brought by the intervener against the registration of the Community trade mark applied for by the applicant, the principal ground raised in support of the opposition being the likelihood of confusion referred to in Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 2004 L 11, p. 1) (now Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). The main proceedings, which concerned neither a new question of law nor a complex question of fact and which did not require complex analysis, cannot be regarded as particularly difficult. The view must also be taken that that case was not of particular importance as regards European Union law.
15 Secondly, it must be noted that, although the main proceedings were clearly of a certain economic interest to the intervener, that economic interest cannot be regarded as unusual or significantly different from that underlying any opposition proceedings brought against an application for registration of a Community trade mark.
16 Thirdly, as regards the assessment of the amount of work generated by the main proceedings for the intervener’s lawyer, it must be borne in mind that it is for the European Union Court to take into consideration the work objectively necessary to the legal proceedings as a whole. Furthermore, it should be recalled that the ability of the Court to assess the value of work carried out is dependent on the accuracy of the information provided (see order in Airtours v Commission, paragraph 30 and the case-law cited).
17 In the present case, with regard to the amount of EUR 6 168.26 claimed by the intervener in respect of lawyers’ fees, it must be pointed out, on one hand, that the intervener’s letter, enclosing the invoice for the intervener’s lawyer’s fees, contains a statement of the documents drafted and the steps taken by that lawyer and of the overall amount of the fees. However, it does not specify the hourly rate applied or the amount of time taken by the intervener’s lawyer for each document drafted or for each step taken. Accordingly, it must be held that there are no details to prove the amount of work generated by the main proceedings for the intervener’s lawyer.
18 Moreover, it must be noted that, since the General Court decided to rule without opening the oral procedure, the actual participation of the intervener’s lawyer in the main proceedings was restricted to the drafting of a brief response and a letter concerning the choice of language of the case. Having regard to those factors and to the fact that the main proceedings cannot be regarded as particularly difficult (see paragraph 14 above), the time allegedly devoted by the intervener’s lawyer to the proceedings before the Court, namely 30 hours, appears excessive.
19 Having regard to the foregoing, the view must be taken that the amount of EUR 6 168.26 for lawyers’ fees is excessive and that the lawyers’ fees recoverable by the intervener will be fairly assessed by setting their amount at EUR 3 600.
20 Finally, with regard to the disbursements for which the intervener seeks reimbursement, namely the stamp duty and the notary’s fees and charges, the total of which amounts to EUR 105.74, the applicant states that the intervener has not produced any document to the Court to prove those disbursements. However, it is apparent from the intervener’s letter of 21 April 2010, enclosed with the application for taxation of costs, that the intervener incurred those disbursements in order to supply proof of its legal existence in accordance with Article 44(5)(a) of the Rules of Procedure, read in conjunction with the second subparagraph of Article 115(2) of those Rules. It must be noted that the proof in question, namely an extract from the Danish commercial register, and its translation into the language of the case, form part of the file in the main proceedings. Having regard to that fact, the intervener’s disbursements must be regarded as being recoverable costs within the meaning of Article 91(b) of the Rules of Procedure.
21 In the light of all the foregoing considerations, all the costs recoverable by the intervener will be fairly assessed by setting their amount at EUR 3 705.74, which takes account of all the circumstances of the case up to the date of this order.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
The total amount of the costs to be paid by Mr Rahmi Özdemir to Aktieselskabet af 21. november 2001 is set at EUR 3 705.74.
Luxembourg, 28 February 2012.