ORDER OF THE GENERAL COURT (Second Chamber)
17 July 2012(*)
(Procedure – Taxation of costs)
In Joined Cases T‑60/04 DEP to T‑64/04 DEP,
Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by F. Fajgenbaum, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral and I. de Medrano Caballero, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court, being
Anheuser-Busch, Inc., established in Saint Louis (United States), represented by V. von Bomhard, lawyer,
APPLICATION for taxation of costs to be reimbursed by the applicant to the intervener following the judgment of 12 June 2007 in Joined Cases T‑60/04 to T‑64/04 Budějovický Budvar v OHIM – Anheuser-Busch (BUD), not published in the ECR,
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood, President, F. Dehousse (Rapporteur) and J. Schwarcz, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By applications lodged at the Registry of the Court on 10 and 11 February 2004, the applicant Budějovický Budvar, národní podnik, brought actions for the annulment of five decisions of the Second Board of Appeal of OHIM of 3 December 2003 (Cases R 107/2003‑2, R 111/2003‑2, R 114/2003‑2, R 115/2003‑2 and R 122/2003‑2) concerning opposition proceedings between the applicant and Anheuser-Busch, Inc.
2 The intervener Anheuser-Busch, Inc., intervened in the proceedings, seeking for the applications to be dismissed and the applicant ordered to pay the costs.
3 By order of the President of the Fifth Chamber of the Court of 15 February 2005, the cases were joined for the purposes of the oral procedure and the judgment in accordance with Article 50 of the Court’s Rules of Procedure.
4 Those cases were connected with two other groups of joined cases (Joined Cases T‑53/04 to T‑56/04, T‑58/04 and T‑59/04 and Joined Cases T‑57/04 and T‑71/04).
5 By judgment of 12 June 2007 in Joined Cases T‑60/04 to T‑64/04 Budějovický Budvar v OHIM – Anheuser-Busch (BUD), not published in the ECR, the Court dismissed the applications and ordered the applicant to pay the costs in accordance with Article 87(2) of the Rules of Procedure.
6 No agreement having been reached with the applicant on the amount of costs, the intervener, by document lodged at the Registry of the Court on 14 February 2011, requested the Court to determine, in accordance with Article 92(1) of the Rules of Procedure, the costs relating to the proceedings before OHIM and the Court at EUR 34 221.35. Those costs were broken down as follows: EUR 1 250 for the proceedings before the Opposition Division, EUR 2 500 for the proceedings before the Board of Appeal, and EUR 30 471.35 for the proceedings before the Court, including EUR 1 240.70 for the expenses incurred by the intervener’s employee Mr F.H. for attending the hearing and EUR 2 596.65 for the present proceedings for taxation of costs. Where fee notes related, according to the intervener, to all the cases before the Court, it calculated proportionately the sum recoverable for each group of cases.
7 The applicant considers that the amount of costs claimed by the intervener is excessive and asks the Court to fix that amount at a level it considers appropriate.
Law
Costs relating to the proceedings before the Opposition Division
8 With respect to disputes concerning intellectual property rights, Article 136(2) of the Rules of Procedure provides that recoverable costs include costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal.
9 As is apparent from the clear wording of that provision, the Court does not have jurisdiction to adjudicate on the costs of the proceedings before the Opposition Division of OHIM. The intervener’s request for costs to be determined in that respect must therefore be declared inadmissible (see, to that effect, order of 9 February 2011 in Case T‑429/08 DEP Grain Millers v OHIM – Grain Millers (GRAIN MILLERS), not published in the ECR, paragraph 18).
Costs relating to the proceedings before the Board of Appeal
10 Although the Board of Appeal ordered the applicant to pay the costs, it did not specify the amounts recoverable in that respect in relation to the proceedings before it.
11 It should be noted that, under Rule 94(7)(f)(ii) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), in the version in force at the time of the decisions of the Board of Appeal, the cost of representation of the defendant in appeal proceedings amounted to EUR 500, as the intervener also observes.
12 As the joined cases which are the subject of this order refer to five proceedings before the Board of Appeal, the intervener’s claim for EUR 2 500 must be allowed.
Costs relating to the proceedings before the Court
13 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 regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, secondly, to those which were necessary for that purpose (order in Case T‑38/95 DEP Groupe Origny v Commission [2002] ECR II‑217, paragraph 28, and order in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13).
14 It is settled case-law that, in the absence of provisions of European Union law 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 Community 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 order in Airtours v Commission, cited in paragraph 13 above, paragraph 18 and the case-law cited).
15 In the present case, the Court notes, first, that the main proceedings were of some significance as regards the interpretation of Article 8(4) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended, and more particularly as regards the scope of the protection, from the point of view of French law applicable in the case, of appellations of origin protected under the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, adopted on 31 October 1958, as revised and amended. The proceedings were therefore of some significance from the point of view of Community law.
16 It must be observed, secondly, that while the case was indeed of financial interest for the intervener, in the complete absence of any specific evidence put forward by the intervener, that interest cannot be regarded as unusual or substantially different from that which underlies any application for registration of a Community trade mark.
17 Thirdly, it should be recalled that the primary consideration of the Court is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (see order in Joined Cases T‑226/00 DEP and T‑227/00 DEP Nan Ya Plastics v Council [2003] ECR II‑685, paragraph 44 and the case-law cited).
18 In that regard, the ability of the European Union judicature to assess the value of the work carried out depends on the accuracy of the information provided (see order in Airtours v Commission, cited in paragraph 13 above, paragraph 30 and the case-law cited). The lack of more detailed information makes it especially difficult to verify the costs incurred for the purpose of the proceedings before the Court and those which were necessary for that purpose. In those circumstances, a strict assessment of the fees recoverable is necessary (see order of 27 April 2009 in Case T‑263/03 DEP Mülhens v OHIM – Conceria Toska (TOSKA), not published in the ECR, paragraph 18 and the case-law cited). In the present case, no breakdown has been given of hourly rates and the time spent on each item in the lawyers’ fee notes that the intervener produced in its application for taxation of costs, apart from one breakdown of time spent. The evidence produced to the Court does not therefore enable it to make a proper assessment of the amount of work actually done.
19 Moreover, where the applicant’s lawyers have already assisted the applicant during proceedings or procedures prior to the relevant action, as in the present cases, it must also be taken into account that they are familiar with matters relevant to the action, which is likely to have facilitated their work and reduced the preparation time required for the judicial proceedings (order in Case T‑331/94 DEP IPK-München v Commission [2006] ECR II‑51, paragraph 59).
20 Fourthly, as regards the costs of travel incurred by the intervener’s employee Mr F.H. in order to attend the hearing, it must be recalled that travel and subsistence expenses incurred by persons other than the lawyer of the applicant in question are recoverable only if the presence of those persons was necessary for the purpose of the proceedings (order in Case T‑85/94 (92) Eugénio Branco v Commission [1998] ECR II‑2667, paragraph 24, and order in Joined Cases T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP De Nicola v EIB [2004] ECR‑SC I‑A‑219 and II‑973, paragraph 40). In the present case, the intervener has not produced any evidence to show that the presence at the hearing of Mr F.H. was necessary. The fact that Mr F.H. follows the proceedings between the applicant and the intervener and the fact that he considered it important to attend the hearing are not sufficient grounds in this respect. The travel and subsistence expenses of Mr F.H. are not therefore ‘expenses necessarily incurred’ within the meaning of Article 91(b) of the Rules of Procedure.
21 The Court, having regard to the documents in the case, assessed in the light of the above considerations, considers that the costs relating to the proceedings before the Court that are recoverable by Anheuser-Busch from Budvar may be fairly assessed at EUR 15 000.
22 Since the sum mentioned in the preceding paragraph takes account of all the circumstances of the case to date, there is no need to rule separately on the costs incurred by the parties for the purposes of the present proceedings for taxation of costs (see, to that effect, order in Case T‑178/98 DEP Fresh Marine v Commission [2004] ECR II‑3127, paragraph 43 and the case-law cited).
23 In the light of all the above considerations, the total costs recoverable by Anheuser-Busch from Budvar in the present joined cases amount to EUR 17 500.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
The total costs payable by Budějovický Budvar, národní podnik, to Anheuser-Busch, Inc., are fixed at EUR 17 500.
Luxembourg, 17 July 2012.