Case T‑145/08 DEP

(publication by extracts)

Atlas Transport GmbH

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Procedure — Taxation of costs)

Summary — Order of the General Court (Fourth Chamber), 21 May 2014

1.      Judicial proceedings — Costs — Taxation — Court having jurisdiction in the event of an appeal

(Rules of Procedure of the Court of Justice, Arts 137 and 184; Rules of Procedure of the General Court, Art. 87(1))

2.      Judicial proceedings — Costs — Intellectual property litigation — Recoverable costs — Costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal — No decision of the Board of Appeal concerning the costs of the procedure before it

(Rules of Procedure of the General Court, Art. 136(2); Council Regulation No 207/2009, Art. 85(1) and (6))

1.      Under Articles 137 and 184 of the Rules of Procedure of the Court of Justice and Article 87(1) of the Rules of Procedure of the General Court, a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. Thus, where the Court of Justice dismisses the appeal and orders the applicant to pay the costs, that order for costs must be interpreted as covering only the costs relating to the appeal. Dismissal of the appeal implies that the General Court’s decision on costs has not been set aside by the Court of Justice.

It is therefore for the General Court to determine the amounts recoverable following the proceedings before it in the case which gave rise to the judgment under appeal. The General Court therefore has jurisdiction to rule on the application for taxation of costs relating to the proceedings before it which culminated in the judgment under appeal.

(see paras 11-13)

2.      It is apparent from Article 136(2) of the Rules of Procedure that the General Court does not have jurisdiction to adjudicate on the costs relating to the proceedings before the Cancellation Division of OHIM. An application for taxation of such costs must therefore be declared inadmissible.

As for costs incurred before the Board of Appeal of OHIM, where the latter dismisses the action of the applicant without ruling on the costs of the procedure before it, it is for the intervener to lodge an application at the registry of the Board of Appeal, pursuant to Article 85(1) and (6) of Regulation No 207/2009 on the Community trade mark, seeking determination of the amount of the costs to be reimbursed for the procedure before the Board of Appeal. The action before the General Court and the appeal before the Court of Justice have no bearing on that assessment, since neither the judgment of the General Court nor the order of the Court of Justice challenged the lawfulness of the Board of Appeal’s decision. Those judicial proceedings only delayed the date on which the Board of Appeal’s decision for which the application was made for the costs to be fixed became final.

Accordingly, by analogy with the situation in which, where the Board of Appeal makes an order for costs and its decision remains valid after the dismissal of the applicant’s action before the General Court, the Court does not rule on the costs incurred before the Board of Appeal.

(see paras 17, 20-22)