ORDER OF THE GENERAL COURT (First Chamber)
11 June 2024 (*)
(Procedure – Taxation of costs)
In Case T‑24/22 DEP,
Ugo Bensoussan, residing in Paris (France), represented by V. Bouchara and A. Maier, lawyers,
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
Lulu’s Fashion Lounge LLC, established in Chico, California (United States), represented by C. Bercial Arias and K. Dimidjian-Lecompte, lawyers,
THE GENERAL COURT (First Chamber),
composed of D. Spielmann, President, R. Mastroianni and S.L. Kalėda (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the judgment of 8 February 2023, Bensoussan v EUIPO – Lulu’s Fashion Lounge (LOULOU STUDIO) (T‑24/22, not published, EU:T:2023:54),
makes the following
Order
1 By its application under Article 170 of the Rules of Procedure of the General Court, the intervener, Lulu’s Fashion Lounge LLC, asks the Court to fix at EUR 10 511.64 the amount of recoverable costs to be paid by the applicant, Mr Ugo Bensoussan, in respect of the costs which it incurred in the proceedings in Case T‑24/22.
Background to the dispute
2 By application lodged at the Court Registry on 14 January 2022, registered as Case T‑24/22, the applicant brought an action based on Article 263 TFEU seeking the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 November 2021 (Case R 480/2021-4), given in opposition proceedings between the intervener and the applicant (‘the contested decision’).
3 The intervener participated in the proceedings before the General Court and supported the form of order sought by EUIPO. It contended that the Court should dismiss the action and order the applicant to pay the costs.
4 By judgment of 8 February 2023, Bensoussan v EUIPO – Lulu’s Fashion Lounge (LOULOU STUDIO) (T‑24/22, not published, EU:T:2023:54), the Court dismissed the action and ordered the applicant to pay the costs incurred by the intervener.
5 By emails of 27 October and 28 November 2023, the intervener informed the applicant that the total amount of recoverable costs was EUR 8 011.64 and requested that he reimburse that amount.
6 By email of 6 December 2023, the applicant agreed, in principle, to pay a sum of EUR 550, which represented the costs incurred before the Board of Appeal, but refused to pay the sum of EUR 7 461.64, claimed by the intervener in respect of the proceedings before the Court.
7 No agreement was reached between the parties on the amount of recoverable costs.
Forms of order sought
8 The intervener claims that the Court should:
– fix the amount of recoverable costs to be reimbursed by the applicant at EUR 550 in respect of the proceedings before the Board of Appeal;
– fix the amount of recoverable costs to be reimbursed by the applicant at EUR 7 461.64 in respect of the main proceedings before the Court;
– fix the amount of recoverable costs to be reimbursed by the applicant at EUR 2 500 in respect of the present taxation of costs proceedings.
9 The applicant contends that the Court should:
– reject the intervener’s application in so far as it concerns non-recoverable costs;
– fix the total amount of the recoverable costs at a substantially lower amount than that claimed by the intervener.
Law
10 Article 170(3) of the Rules of Procedure provides that, if there is a dispute concerning the costs to be recovered, the General Court is, on application by 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.
11 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 to be regarded as recoverable costs. It follows from that provision that recoverable costs are limited to those incurred for the purpose of the proceedings before the General Court and to those which were necessary for that purpose (see order of 6 March 2003, Nan Ya Plastics and Far Eastern Textiles v Council, T‑226/00 DEP and T‑227/00 DEP, EU:T:2003:61, paragraph 33 and the case-law cited).
12 It is apparent from the present application and the invoices submitted by the intervener that the amount requested can be broken down as follows:
– EUR 550 in respect of the proceedings before the Board of Appeal of EUIPO;
– EUR 1 700 in respect of the preparation of the file and the drafting and filing of the intervener’s response before the Court;
– EUR 670 in respect of the drafting of a report on the Court’s judgment;
– EUR 4 402.50 in respect of the preparation of the hearing, participation in that hearing and the drafting of a report on that hearing;
– EUR 689.14 corresponding to the costs and disbursements related to the hearing.
The costs incurred for the purposes of the proceedings before the Board of Appeal of EUIPO
13 As regards the amount of EUR 550 applied for in respect of the proceedings before the Board of Appeal of EUIPO, it must be stated that it was fixed in the operative part of the contested decision and that the applicant does not dispute it.
14 It should be noted that, since the Court dismissed the main action brought by the applicant, the contested decision has become final, in accordance with Article 71(3) 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).
15 Consequently, it is not necessary to rule on the costs incurred before EUIPO, since they were fixed in the contested decision, which is enforceable and which the intervener can therefore have enforced against the applicant, as is clear from the wording of Article 110 of Regulation 2017/1001 (see order of 11 April 2019, Stada Arzneimittel v EUIPO – Urgo recherche innovation et développement (Immunostad), T‑403/16 DEP, not published, EU:T:2019:249, paragraph 36 and the case-law cited).
The costs incurred for the purposes of the proceedings before the General Court
The lawyers’ fees
16 It is settled case-law that the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees which may be recovered from the applicant. In ruling on an application for taxation of costs, the Court is not required to take into account any national tariff fixing lawyers’ fees or any agreement to that effect between the party concerned and its agents or advisers (see order of 26 January 2017, Nürburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 10 and the case-law cited).
17 It should also be borne in mind that, in the absence of provisions of EU law relating to tariffs or to the necessary working time, the Court must freely assess the details of the case, taking account of the subject matter and nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved, and the economic interests which the dispute represented for the parties (see order of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 11 and the case-law cited).
18 It is in the light of those considerations that the amount of the costs recoverable in the present case must be assessed.
19 In the first place, the Court notes that the case in the main proceedings was not, as regards its subject matter and nature, particularly complex. That case raised a question falling within the context of ordinary trade mark litigation, namely that relating to the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. The case at issue concerned neither a new point of law nor a complex factual situation, and cannot therefore be regarded as presenting any particular difficulty. Likewise, the case did not have any particular significance from the point of view of EU law, inasmuch as the judgment of 8 February 2023, LOULOU STUDIO (T‑24/22, not published, EU:T:2023:54) forms part of a well-established line of case-law.
20 In the second place, as regards the economic interests involved, it is not disputed that, in the light of the importance of trade marks in trade, the intervener clearly had an interest in the applicant’s action for annulment of the contested decision being dismissed. However, in the absence of specific evidence adduced by the intervener, its economic interest cannot be considered to be unusual or significantly different from that which underlies any opposition proceedings.
21 In the third place, as regards the amount of work which the proceedings may have generated for the intervener’s representatives, it must be borne in mind that the primary consideration for the Courts of the European Union 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 of 29 November 2016, TrekStor v EUIPO – Scanlab (iDrive), T‑105/14 DEP, not published, EU:T:2016:716, paragraph 16 and the case-law cited).
22 In the present case, the intervener submitted before the Court a response of eleven pages, excluding annexes, comprising seven pages of argument. It also participated in a hearing.
23 As regards the amount of EUR 1 700 referred to in paragraph 12 above in respect of the preparation of the file and the drafting and filing of the response, the intervener argues that it is the result of applying an hourly rate of EUR 250. In that regard, it should be noted that the intervener’s representatives already had extensive knowledge of the case since they had represented that intervener prior to the initiation of the main proceedings, during the proceedings before the Opposition Division and the Board of Appeal of EUIPO. That consideration is likely to have, in part, facilitated the work and reduced the time spent preparing the response (see, to that effect, order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 29 and the case-law cited). In those circumstances, the amount of EUR 1 700 applied for in respect of the response must be considered to be excessive.
24 As regards the amount of EUR 670 referred to in paragraph 12 above, applied for in respect of a report on the judgment of the Court, it should be borne in mind that, according to settled case-law, recovery must be refused for costs relating to the period after the oral part of the procedure where no procedural steps were taken after the hearing (see 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). Therefore, that amount cannot be considered to be necessary for the purpose of the proceedings before the General Court.
25 As regards the amount of EUR 4 402.50, referred to in paragraph 12 above, it is apparent from the invoice produced by the intervener, read in the light of the application for taxation, that that amount includes the fact of being informed of the decision that a hearing would be held and of replying to questions, preparing for the hearing on 7 December 2022 and sending hearing notes to the Court’s interpreters, participating in that hearing and writing a report on that hearing.
26 In that regard, the Court, while recognising the need for thorough preparation for the hearing and the amount of work likely to result therefrom, considers that, owing to the small volume of the parties’ written submissions, the absence of complex and new factual and legal questions during the oral part of the procedure, and the duration of the hearing, which was 32 minutes, the amount of EUR 4 402.50 applied for is manifestly excessive. In addition, the considerations set out in paragraph 25 above apply to the part of the amount applied for corresponding to a report on the hearing to the intervener.
27 In the light of the foregoing, the lawyer’s fees recoverable by the intervener in respect of the proceedings before the Court can be assessed on an equitable basis at EUR 2 000.
The disbursements
28 As regards the amount of EUR 689.14 applied in respect of costs and disbursements, the intervener states that it includes train tickets, taxi and hotel costs and meals.
29 First, it must be stated, as the applicant observed, that the invoices submitted by the intervener amount to a total of EUR 592.90. Second, the intervener does not provide any explanation as to the necessary nature of the exchange of a train ticket, which led to an additional cost of EUR 71. With regard to the taxi and hotel costs and the meals, they were justified by invoices attached as an annex to the application for taxation of costs and do not appear to be disproportionate. It is therefore appropriate to fix the amount of recoverable disbursements at EUR 521.90.
The costs relating to the present taxation of costs proceedings
30 As regards the lump sum of EUR 2 500 claimed by the intervener for the conduct of the present taxation of costs proceedings, it should be noted that, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (see order of 11 April 2019, Immunostad, T‑403/16 DEP, not published, EU:T:2019:249, paragraph 31 and the case-law cited).
31 According to settled case-law, an application for taxation of costs is of a fairly standardised nature and is characterised, generally, by the absence of any difficulty for the lawyer who has already dealt with the substance of the case (see order of 11 April 2019, Immunostad, T‑403/16 DEP, not published, EU:T:2019:249, paragraph 32 and the case-law cited.
32 In the present case, it must be observed that the application for taxation of costs merely sets out briefly the amounts of costs of which reimbursement is claimed and their overall allocation. In those circumstances, a total amount of EUR 500 must be considered to be reasonable to cover the costs relating to the present proceedings.
33 In the light of all the foregoing considerations, the Court considers that the costs recoverable by the intervener can be assessed on an equitable basis at EUR 3 021.90, which takes account of all the circumstances of the case up to the making of the present order.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
The total amount of the costs to be reimbursed by Mr Ugo Bensoussan to Lulu’s Fashion Lounge LLC is fixed at EUR 3 021.90.
Luxembourg, 11 June 2024.