ORDER OF THE GENERAL COURT (Tenth Chamber)
10 August 2021 (*)
(Procedure – Taxation of costs)
In Case T‑659/19 DEP,
FF Group Romania SRL, established in Bucharest (Romania), represented by A. Căvescu, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO),
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
KiK Textilien und Non-Food GmbH, established in Bönen (Germany), represented by S. Körber, lawyer,
APPLICATION for taxation of costs to be reimbursed by the applicant to the intervener following the judgment of 8 July 2020, FF Group Romania v EUIPO – KiK Textilien und Non-Food (_kix) (T‑659/19, not published, EU:T:2020:328),
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov, President, E. Buttigieg and K. Kowalik‑Bańczyk (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Registry of the General Court on 30 September 2019, the applicant, FF Group Romania SRL, brought an action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 July 2019 (Case R 353/2019‑2). That decision related to opposition proceedings between the intervener, KiK Textilien und Non-Food GmbH, and the applicant.
2 On 6 December 2019, the intervener lodged a response requesting that the action be dismissed and the applicant ordered to pay the costs, in the same way as EUIPO.
3 By judgment of 8 July 2020, FF Group Romania v EUIPO – KiK Textilien und Non-Food (_kix) (T‑659/19, not published, EU:T:2020:328, ‘the case in the main proceedings’), the Court dismissed the action and, on the basis of Article 134(1) of the Rules of Procedure of the General Court, ordered the applicant to pay the costs incurred by EUIPO and the intervener.
4 By emails dated 2 February 2021 and 1 March 2021 sent to the applicant’s lawyer, the intervener sought payment of its costs from the applicant, assessed at EUR 1 755.70, in respect of the case in the main proceedings. By email of 2 March 2021, the applicant’s lawyer informed the intervener that the request to pay its costs, sent to the applicant on 8 February 2021, had remained unanswered by the latter.
5 As the applicant did not accede to those requests, the intervener, by document lodged at the Court Registry on 31 March 2021, submitted an application for taxation of costs pursuant to Article 170(1) of the Rules of Procedure.
6 By that application, the intervener claims that the Court should fix the amount of recoverable costs, assessed at EUR 1 755.70, in respect of the case in the main proceedings, which are to be reimbursed by the applicant. That sum corresponds to the total amount, exclusive of VAT, presented in an invoice sent to the intervener by its lawyer, which contains amounts relating to lawyer’s fees and other costs incurred in the case in the main proceedings before the Court. That invoice, dated 19 January 2021 (‘the invoice of 19 January 2021’), has been submitted as supporting evidence.
7 The applicant has not submitted observations on that application for taxation of costs.
Law
8 It follows from Article 170(3) of the Rules of Procedure that, if there is a dispute concerning the costs to be recovered, the Court is, at the request of the party concerned, to give its decision by way of an order from which no appeal is to lie, after giving the party concerned by the application an opportunity to submit its observations.
9 Under Article 140(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, second, to those which were necessary for that purpose (orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 13, and of 26 January 2017, Nürburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 9).
10 According to settled case-law, the Court is not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees to be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the Court is not obliged to take account of any national scale of lawyers’ fees or any agreement in that regard between the party concerned and his or her agents or advisers (see orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17, and of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 10).
11 Moreover, in the absence of provisions of EU 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 EU 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 orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18, and of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 11).
12 The amount of the costs recoverable in the present case must be assessed in accordance with those criteria.
13 In this instance, the intervener requests that the Court fix the total amount of recoverable costs at EUR 1 755.70 in respect of the case in the main proceedings. As is apparent from the invoice submitted in support of its application, that amount corresponds, first, to lawyer’s fees incurred in the case in the main proceedings before the Court, second, to photocopying expenses and, third, to the costs associated with the purchase of an extract from the commercial register.
Amount of recoverable lawyer’s fees
14 As regards the recoverable costs in respect of the lawyer’s fees, the intervener states that those fees represent 6.75 hours of work at an hourly rate of EUR 250, in accordance with the cumulative amount of the lawyer’s fees indicated in the invoice of 19 January 2021, which amounts to EUR 1 687.50.
15 In the first place, as regards the purpose and nature of the dispute and the difficulty of the questions examined in the case in the main proceedings, it should be noted that that case was not particularly complex. The case in the main proceedings concerned an alleged infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) by the Board of Appeal of EUIPO in its analysis of the likelihood of confusion between the intervener’s earlier national mark and the mark applied for by the applicant, on which the opposition to registration of the mark applied for was based. In that regard, the applicant had, inter alia, raised arguments on the restriction of the list of services covered by the earlier national mark and the examination of the proof of genuine use of that mark by that Board of Appeal.
16 The action was therefore based on normal opposition proceedings against the registration of an EU trade mark, which concerned the assessment of the relative grounds for refusal of registration of the mark applied for on the basis of an analysis of the relevant public and its level of attention, the comparison of the services at issue, the comparison of the marks at issue, the distinctive character of the earlier national mark and the global assessment of the likelihood of confusion. Thus, in the case in the main proceedings, it was essentially a matter of applying to the particular circumstances of the case settled case-law on the assessment as to whether there was a likelihood of confusion between the figurative mark applied for and the earlier national word mark within the meaning of Article 8(1)(b) of Regulation 2017/1001, including that relating more specifically to the examination by the Board of Appeal of proof of genuine use of that earlier mark.
17 Moreover, other pleas in law relied on by the applicant had, in turn, been rejected as inadmissible in the light of the absence of any related arguments in the application.
18 Thus, the case in the main proceedings concerned neither a new point of law nor a complex factual situation, and cannot therefore be regarded as difficult or unusual. The questions at issue had, moreover, already been examined by the Opposition Division and, as regards the likelihood of confusion, by the Board of Appeal of EUIPO. Furthermore, the intervener has not claimed, in its application for taxation of costs, that the case was particularly complex (see, to that effect and by analogy, order of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 17).
19 In the second place, it should be noted that the case in the main proceedings did not have any particular significance in relation to EU law, to the extent that, as mentioned above, the judgment in the case in the main proceedings forms part of a well-established line of case-law (see, to that effect, order of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 17). Moreover, the case in the main proceedings was the subject of a judgment delivered by a formation of three judges, not published in the General Court Reports.
20 In the third place, as regards the financial interests concerned, the Court finds that, although the case presented a financial interest for the intervener, that financial interest cannot, in the absence of specific evidence adduced by the intervener, be regarded as being unusual or significantly different from that which underlies any opposition to an application for registration of an EU trade mark (see, to that effect, orders of 6 March 2014, Spectrum Brands (UK) v OHIM – Philips (STEAM GLIDE), T‑544/11 DEP, not published, EU:T:2014:147, paragraph 15, and of 30 September 2014, Kastenholz v OHIM – Qwatchme (Watch dials), T‑68/11 DEP, not published, EU:T:2014:879, paragraph 22).
21 In the fourth place, as regards the amount of work generated by the case, it must be borne in mind 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 (see orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 30, and of 30 September 2014, Watch dials, T‑68/11 DEP, not published, EU:T:2014:879, paragraph 23 and the case-law cited).
22 In the present case, the intervener submits that, in the case in the main proceedings, 6.75 hours of work were necessary. The invoice of 19 January 2021 refers to an amount of EUR 1 687.50 in respect of the intervener’s lawyer’s fees and sets out the description of the hours of work carried out for each legal task. It is apparent from that description that those fees, in essence, concerned, first, the drafting and lodging of the response and, second, the examination of the judgment in the case in the main proceedings.
23 In that regard, it follows from the schedule of costs and fees relating to the case in the main proceedings that 6.25 hours of work by the intervener’s lawyer consisted in the drafting and lodging of the 12-page response and the related annexes, as required under Article 180(2) of the Rules of Procedure. It is clear that that work was objectively necessary for the purposes of the proceedings. In addition, in view of the purpose and nature of the dispute, as described in paragraph 15 above, there is no doubt that those services involved a certain workload and that the number of 6.25 hours of work therefore appears reasonable.
24 By contrast, the fees for half an hour corresponding to the examination of the judgment delivered in the case in the main proceedings cannot be regarded as expenses necessarily incurred for the purposes of the proceedings. Recovery must be refused for costs pertaining to the period subsequent to the oral procedure if no procedural document was adopted after the hearing (see, to that effect, order of 10 April 2014, Éditions Odile Jacob v Commission, T‑279/04 DEP, not published, EU:T:2014:233, paragraph 39 and the case-law cited), as in the case in the main proceedings. Accordingly, an amount of EUR 125, corresponding to half an hour’s work at an hourly rate of EUR 250, cannot form part of the recoverable costs.
25 Furthermore, in view of the nature of the tasks performed and the specific nature of the matter at issue, the Court considers that the hourly rate of the intervener’s lawyer, namely EUR 250, is reasonable.
26 In those circumstances, the fees recoverable by the intervener in respect of the case in the main proceedings can be assessed on an equitable basis at EUR 1 562.50, which corresponds to 6.25 hours of work at an hourly rate of EUR 250.
Photocopying expenses
27 As regards the costs claimed in respect of photocopying expenses, the invoice of 19 January 2021 indicated an amount of EUR 63.70. Nevertheless, it should be noted that the intervener has not provided any evidence capable of establishing the existence or, a fortiori, the necessity of those costs in respect of the case in the main proceedings.
28 It is, however, for the applicant to establish the amount and the existence of the procedural expenses in respect of which reimbursement is sought (see order of 14 July 2015, Ntouvas v ECDC, T‑223/12 DEP, not published, EU:T:2015:570, paragraph 31 and the case-law cited). In the absence of specific information provided by the intervener, the Court is therefore required to carry out a strict assessment of the recoverable costs.
29 In those circumstances, the Court considers that the applicant cannot be ordered to reimburse the intervener for those costs and it must be concluded that there are no recoverable costs in that regard.
The amount of costsassociated with the purchase of an extract from the commercial register
30 The intervener seeks the sum of EUR 4.50 in respect of the costs relating to the purchase of an extract from the commercial register dated 5 December 2019, which are set out in the invoice of 19 January 2021.
31 It should be noted, in this regard, that, in the case in the main proceedings, the intervener annexed to its response lodged at the Court Registry on 6 December 2019 an extract from the commercial register dated 5 December 2019, in accordance with its obligation under Article 180(2) of the Rules of Procedure, read in conjunction with Article 177(4) thereof. It thus follows that those costs must be considered objectively necessary for the purposes of the main proceedings.
32 Even though no proof of the costs incurred in that regard has been produced, the Court takes the view that, having regard to the small amount involved, the applicant must be ordered to reimburse those costs to the intervener.
33 In the light of all of the foregoing considerations, the total costs recoverable by the intervener can be assessed on an equitable basis at EUR 1 567.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
The total amount of costs to be reimbursed by FF Group Romania SRL to KiK Textilien und Non-Food GmbH is fixed at EUR 1 567.
Luxembourg, 10 August 2021.