ORDER OF THE GENERAL COURT (Seventh Chamber)
23 October 2013 (*)
(Procedure – Taxation of costs)
In Case T‑589/11 DEP,
Phonebook of the World, established in Paris (France), represented by A. Bertrand, lawyer,
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
Seat Pagine Gialle SpA, established in Milan (Italy), represented by F. Jacobacci, lawyer,
APPLICATION for taxation of costs, brought by Seat Pagine Gialle SpA, following the judgment of the General Court of 20 November 2012 in Case T-589/11 Phonebook of the World v OHIM – Seat Pagine Gialle (PAGINE GIALLE), not published in the ECR,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 17 November 2011, the applicant, Phonebook of the World, 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 4 August 2011 (Case R 1541/2010-2), relating to invalidity proceedings between Phonebook of the World and Seat Pagine Gialle SpA (‘the contested decision’).
2 The intervener, Seat Pagine Gialle SpA, intervened in the dispute to request that the action be dismissed and that the applicant be ordered to pay the costs.
3 By judgment of 20 November 2012 in Case T-589/11 Phonebook of the World v OHIM – Seat Pagine Gialle (PAGINE GIALLE), not published in the ECR, the 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 13 December 2012, the intervener requested that the applicant pay to it the amount of its costs, which it assessed at EUR 13 260 as regards the proceedings before the Court and at EUR 1 000 as regards the proceedings before the Cancellation Division and the Board of Appeal. On 15 February 2013, the applicant disputed that request in the course of a telephone conversation. By letter of 4 April 2013, the intervener reiterated its request to the intervener. A final reminder was sent by email on 12 April 2013.
5 By application lodged at the Court Registry on 10 June 2013, the intervener submitted, on the basis of Article 92(1) of the Rules of Procedure, an application for taxation of costs by which it requested that the Court fix the amount of recoverable costs to be reimbursed by the applicant.
6 By document lodged at the Court Registry on 12 August 2013, the applicant requested that that application be refused and that the amount of the costs incurred by the intervener relating, first, to the proceedings before the Cancellation Division and the Board of Appeal be fixed at EUR 900 and, secondly, to the proceedings before the Court be fixed at an amount between EUR 1 250 and EUR 1 500. In particular, as regards the costs relating to the proceedings before the Court amounting, according to the intervener, to EUR 13 260, it took the view that that amount was too high having regard to the fact that the proceedings before the Court were limited to the written procedure and that the written submissions were based on facts which had already been discussed before the Cancellation Division and the Board of Appeal.
Law
7 Under Article 92(1) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the General Court hearing the case is, on application by the party concerned and after hearing the opposite party, 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 follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, secondly, to those which were necessary for that purpose (order in Case T-342/99 DEP Airtours v Commission [2004] ECR II-1785, paragraph 13, and order of 25 October 2010 in Case T-33/08 DEP Bastos Viegas v OHIM – Fabre Médicament (OPDREX), not published in the ECR, paragraph 7.
9 With regard to proceedings relating to intellectual property rights, Article 136(2) of the Rules of Procedure states that ‘costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal and costs incurred for the purposes of the production, prescribed by the second subparagraph of Article 131(4), of translations of pleadings or other documents into the language of the case’ are also to be regarded as recoverable costs.
10 It has also consistently been held 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 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 (order in Airtours v Commission, paragraph 18, and order of 17 July 2007 in Case T-8/03 DEP El Corte Inglés v OHIM – PUCCI (EMILIO PUCCI), not published in the ECR, paragraph 15).
11 It is in the light of those considerations that the amount of the recoverable costs in the present case must be assessed.
12 In the first place, the Court notes that the case in the main proceedings was not, as regards its purpose and nature, particularly complex. That case concerned an application for a declaration of invalidity in which the principal plea in law relied on was the alleged infringement of Article 7(1)(b) to (d) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). As is apparent from reading the judgment in PAGINE GIALLE, the case in question concerned neither a new point of law nor a complex factual situation, and cannot therefore be considered to be particularly difficult. Likewise, the case did not have particular significance in relation to European Union law, inasmuch as the judgment in PAGINE GIALLE is part of a well-established line of case-law. Moreover, the intervener did not submit, in its application for taxation of costs, that the case was particularly complex or important.
13 In the second place, it must be pointed out that, while the case was, admittedly, of financial interest for the intervener, in the complete absence of specific evidence adduced by the latter, that financial interest cannot be regarded as being unusual, or significantly different from that which underlies any application for a declaration of invalidity brought against a Community trade mark.
14 In the third place, as regards the amount of work which the proceedings generated for the intervener’s representatives, it must be borne in mind that the ability of the Courts of the European Union to assess the value of work carried out is dependent on the accuracy of the information provided (see the order in Airtours v Commission, paragraph 30 and the case-law cited).
15 In the present case, as regards the proceedings before the Court, it must be stated that the intervener provided, in support of its application for taxation of costs, a fee note in the amount of EUR 13 260, including a payment of EUR 510 to the office responsible for funds paid by clients to lawyers. That amount of EUR 13 260 includes, first, an amount of EUR 4 000, corresponding to the examination of the dispute, including the examination of earlier proceedings, secondly, an amount of EUR 3 150, corresponding to the examination of the applicant’s action, thirdly, an amount of EUR 4 000, corresponding to the drafting of the intervener’s written pleading, fourthly an amount of EUR 800, corresponding to the examination of OHIM’s response, and, fifthly, an amount of EUR 800, corresponding to the examination of the judgment delivered by the Court. That fee note was sent to the applicant by letter of 13 December 2012. The intervener also provided three invoices for a total amount of EUR 16 736.84 including, in addition to legal services, general flat-rate costs and a number of contributions to the office responsible for funds paid by clients to lawyers.
16 In that regard, it must be pointed out, first, that the intervener did not provide either the hourly rate applicable to the services rendered or the number of hours allotted to each service. Although the fee note does contain a breakdown of the costs in which the fees are broken down on the basis of the work carried out, the part relating to the general flat-rate costs used is not defined in detail. In those circumstances, although the invoices contain information in respect of the documents drafted, without being a precise indication, and of the steps taken by the intervener’s adviser in the context of the judgment in PAGINE GIALLE, the flat-rate assessment of the fees, without specifying the working time in respect of each item referred to and the hourly rate applied, does not make it possible to assess the amount of work actually carried out.
17 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).
18 Secondly, it must be stated that the intervener’s advisers already had extensive knowledge of the case as they had represented it prior to the initiation of the main proceedings, during the proceedings before the Cancellation Division and the Board of Appeal of OHIM. That factor, in part, facilitated the work and reduced the time which had to be devoted to the drafting of the response (see, to that effect, the order in Airtours v Commission, paragraph 29 and the case-law cited). The sum of EUR 4 000 claimed for the examination of the dispute, including the examination of earlier proceedings, is therefore excessive in that regard alone.
19 Furthermore, in its response, the intervener primarily had to state its views only on the Board of Appeal’s alleged infringement of Article 7(1)(b) to (d) of Regulation No 207/2009. In the light of the fact that the intervener had put forward legal arguments in that regard before the Board of Appeal, it must be stated that the drafting of the response did not require a sensitive or in-depth examination. Furthermore, that response has eight Annexes the submission of which did not require any significant intellectual or administrative work: an extract from the register of the Chamber of Commerce, the intervener’s adviser’s practising certificate, the authority granted to the intervener’s lawyer, the Examiner’s decision, two surveys carried out in 2002 and 2008 which were produced before the Cancellation Division and two extracts from Wikipedia and a dictionary. It follows that the amounts demanded by the intervener in respect of the examination of the action and of OHIM’s response and in respect of the drafting of its own response, an additional amount of EUR 7 950, are excessive.
20 Thirdly, having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, the Court decided, acting upon a report of the Judge‑Rapporteur to rule on the action without an oral procedure pursuant to Article 135a of the Rules of Procedure. The intervener could not therefore have had any costs relating to that. Furthermore, it must be borne in mind that the stage of the written procedure involved only one exchange of pleadings between the parties. The participation of the intervener’s lawyer in the main proceedings was thus limited to the drafting of a short response and a letter relating to the choice of the language of the case.
21 Fourthly, the sum of EUR 800 demanded by the intervener’s lawyer for the analysis and communication to the intervener of the Court’s judgment of 20 November 2012, which is only 10 pages long and deals with only one point of law, is excessive.
22 As regards, lastly, the costs relating to the proceedings before OHIM, a total amount of EUR 1 000 and not EUR 900, as the applicant maintains, it should be noted that the first subparagraph of Article 136(2) of the Rules of Procedure provides for the reimbursement of costs incurred for the purposes of the proceedings before the Board of Appeal only. Those costs must be reimbursed on the basis of the decision of the Board of Appeal relating to the costs, a decision that has remained valid after the dismissal of the applicant’s action (see, to that effect, order of 13 March 2006 in Case T‑115/02 DEP AVEX v OHIM – Ahlers (a), not published in the ECR, paragraph 11).
23 It follows that there is no need to rule on the costs incurred before OHIM, since they were fixed in the decision of the Board of Appeal, which is enforceable and which the intervener can therefore enforce against the applicant (see, to that effect, order of 2 March 2012 in Case T‑270/09 DEP PVS v OHIM – MeDiTA Medizinische Kurierdienst (medidata), not published in the ECR, paragraphs 19 and 20).
24 In the light of all of the foregoing considerations, in particular the brevity of the explanations provided by the intervener, the Court finds that an amount of EUR 2 500 represents a fair assessment of the costs recoverable by the intervener in respect of the proceedings before the Court, an amount which takes account of all the circumstances of the case up to the adoption of the present order.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The total amount of costs to be reimbursed by PAGINE GIALLE SpA is fixed at EUR 2 500.
Luxembourg, 23 October 2013.
E. Coulon | M. van der Woude
Registrar | President |