ORDER OF THE GENERAL COURT (Second Chamber)
19 June 2024 (*)
(Procedure – Taxation of costs)
In Case T‑200/20 DEP,
Stone Brewing Co. LLC, established in Escondido, California (United States), represented by M. Kloth and R. Briske, 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
Molson Coors Brewing Company (UK) Ltd, established in Burton Upon Trent (United Kingdom), represented by G. Orchison, Solicitor, and J. Abrahams KC,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and L. Spangsberg Grønfeldt, Judges,
Registrar: V. Di Bucci,
having regard to the judgment of 14 June 2023, Stone Brewing v EUIPO – Molson Coors Brewing Company (UK) (STONE BREWING) (T‑200/20, not published, EU:T:2023:330),
makes the following
Order
1 By its application on the basis of Article 170 of the Rules of Procedure of the General Court, the intervener, Molson Coors Brewing Company (UK) Ltd, requests that the Court fix at EUR 58 401.04 the amount of recoverable costs to be paid by the applicant, Stone Brewing Co. LLC, in respect of the costs incurred by the intervener in the main proceedings in Case T‑200/20.
Background to the dispute
2 By application lodged at the Registry of the General Court on 15 April 2020 and registered as Case T‑200/20, the applicant brought an action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 January 2020 (Case R 1524/2018‑4).
3 At the request of the applicant, the Court, by decision of 18 June 2020, stayed the main proceedings pending the adoption of a final decision in the context of parallel proceedings for revocation of the intervener’s earlier EU trade mark STONES, which was adopted by judgment of 9 March 2022, PrenzMarien v EUIPO – Molson Coors Brewing Company (UK) (STONES) (T‑766/20, not published, EU:T:2022:123).
4 By judgment of 14 June 2023, Stone Brewing v EUIPO – Molson Coors Brewing Company (UK) (STONE BREWING) (T‑200/20, not published, EU:T:2023:330), the Court dismissed the action and ordered the applicant to pay the costs incurred by the intervener.
5 By letter of 7 December 2023, the intervener requested that the applicant reimburse it the sum of 50 185 pounds sterling (GBP) in respect of recoverable costs relating to the main proceedings.
6 No agreement was reached between the parties on the amount of recoverable costs.
Forms of order sought
7 The intervener claims that the Court should:
– fix the total amount of recoverable costs to be reimbursed by the applicant at EUR 58 401.04;
– increase that amount by default interest from the date of service of the order to be made until such time as it is paid.
8 The applicant contends that the Court should:
– significantly reduce the total amount of costs claimed.
Law
9 Under Article 170(3) of the Rules of Procedure of the General Court, if there is a dispute concerning the costs to be recovered, the Court, on application by the interested party, is 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.
10 According to point (b) of the first paragraph of Article 140 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 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).
11 In the present case, the intervener seeks reimbursement of the fees of the lawyers who defended its interests in the main proceedings, namely GBP 21 800 for the services provided by two barristers, GBP 11 250 for the services provided by the intellectual property specialist firm Groom Wilkes & Wright LLP and GBP 16 685 for the services provided by two solicitors from the law firm TLT LLP. The intervener also seeks reimbursement of the costs relating to the services provided by a ‘Costs Draftsman’, namely GBP 450, together with default interest due on all those sums from the date of service of the order to be made until such time as they are paid.
Recoverable costs in the main proceedings
The lawyers’ fees
12 According to settled case-law, 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 the 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).
13 It should also be borne in mind that, in the absence of provisions of EU law relating to tariffs or to the time required to carry out the work, 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).
14 It is necessary to determine the amount of recoverable lawyers’ fees in the present case in the light of those considerations.
15 In the first place, as regards the subject matter and nature of the dispute, its importance from the point of view of EU law and the difficulties presented by the case, it should be noted that Case T‑200/20 was not particularly complex in terms of its subject matter and nature. It concerned a relatively frequent issue in trade mark law, namely the existence of a likelihood of confusion within the meaning 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) and, more specifically, the question of proof of genuine use of the earlier EU trade mark STONES relied on in support of the opposition, which did not present any particular difficulty.
16 Furthermore, since the Board of Appeal examined whether there was a likelihood of confusion on the basis of the abovementioned mark and not on the basis of the intervener’s earlier United Kingdom trade mark STONES, it is necessary to reject the intervener’s claim that Case T‑200/20 raised, in essence, complex issues concerning the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and its consequences with regard to the main proceedings.
17 Accordingly, Case T‑200/20 was part of a recurring dispute before the Court and did not involve issues that were particularly complex, in law or in fact, or were of particular importance in relation to EU law, so that it could not be regarded as presenting any particular difficulty. In addition, it did not raise a new question of law requiring referral to a Chamber sitting in extended composition and could be dealt with on the basis of settled case-law.
18 Consequently, it must be held that the case in question was of limited importance from the point of view of EU law.
19 In the second place, as regards the economic interests at stake, it should be noted that, although Case T‑200/20 had a certain financial interest for the intervener, in the absence of any evidence adduced by the latter, that financial interest cannot be regarded as being unusually high or significantly different from that which underlies any opposition proceedings against the registration of a sign as an EU trade mark.
20 In the third place, as regards the extent of the work to which the proceedings may have given rise for the intervener, 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. In that respect, 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 order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM – Yorma’s (Yorma Eberl), T‑229/14 DEP, not published, EU:T:2016:177, paragraph 19 and the case-law cited). In particular, it is apparent from the case-law that it is particularly important for a party that is seeking the reimbursement of costs, in order to show the need for the hours worked by its lawyers, to provide precise information on the tasks accomplished by them for the purpose of the proceedings, on the number of hours devoted to each of those tasks and on the hourly rates applied (order of 19 December 2022, PrenzMarien v EUIPO – Molson Coors Brewing Company (UK) (STONES), T‑766/20 DEP, not published, EU:T:2022:866, paragraph 21).
21 In the present case, the intervener produced a table listing the various categories of services provided by the two solicitors from the law firm TLT LLP, the overall time they spent providing those services, and the total amount of fees relating thereto. That table also contains an indication of the hourly rate applied by those solicitors, respectively (that is to say, the respective rates of GBP 250 and GBP 150) – one of whom had initially acted as a trainee (in that case, her services were invoiced at GBP 95 per hour) – and the flat-rate amount invoiced by them for telephone calls made and letters drafted. In addition, that table mentions the different categories of services provided by the two barristers and the total amount of fees relating thereto, without indicating the time actually spent or the hourly rate. As regards the law firm Groom Wilkes & Wright LLP, that table merely mentions the total amount of fees allegedly due to it.
22 Furthermore, the intervener produced a document setting out in greater detail each service provided by the solicitors from the law firm TLT LLP, including an indication of the date of the service and the time spent on it.
23 The intervener also produced a table with a list of the services provided monthly by the law firm Groom Wilkes & Wright LLP during the months of May 2020 to October 2023, indicating the total amount of the corresponding monthly fees. It should be noted that that table does not mention either the hourly rate or the time spent on each of the services invoiced.
24 Lastly, the intervener provided a summary table of the fees payable to all its lawyers, including a very brief description of their services and mentioning the time spent by the two solicitors from the law firm TLT LLP on each of the services invoiced and the number of letters sent and telephone calls made.
25 It follows from the foregoing that the intervener has not provided, in its application for taxation of costs, a detailed statement with the breakdown of the fees for the various services rendered by each of the lawyers who assisted the intervener in the main proceedings, the number of hours allocated to each service provided, and the hourly rate applied for carrying out each item mentioned, and those elements have not been set out systematically in all the documents it produced in support of its application. In particular, those documents provide an indication of the number of hours devoted to handling Case T‑200/20 only for the two solicitors from the law firm TLT LLP. In addition, no information is provided as regards the number of hours spent by the two barristers and the law firm Groom Wilkes & Wright LLP handling the case in the main proceedings or the hourly rate applied.
26 Moreover, it must be stated that the description of the work done by the intervener’s lawyers is often drafted in general and vague terms (for example, ‘Engaged in Conference with Counsel’, ‘Engaged in Conference’, ‘Reviewing substantial quantity of relevant documents, considering relevant procedural rules’, ‘Preparing draft instruction to Counsel’), which makes it particularly difficult to verify whether they are ‘necessary’ within the meaning of the case-law cited in paragraph 20 above.
27 It follows that the amount of work to which the main proceedings gave rise for the intervener’s lawyers is not substantiated in detail.
28 Although the lack of precise information on the costs actually incurred for the purposes of the proceedings, including in particular the hourly rates and the time spent by each of the intervener’s lawyers in carrying out various tasks, does not preclude the Court from fixing, on the basis of an equitable assessment, the amount of the recoverable costs, it places it in a position in which its assessment of the intervener’s claims must necessarily be strict (see order of 8 July 2020, Fastweb v Commission, T‑19/17 DEP, not published, EU:T:2020:331, paragraphs 44, 46 and 47).
29 First, in the present case, it must be observed that the main proceedings consisted only of a written part during which the intervener produced a 7-page response, accompanied by 7 annexes totalling 64 pages, which included the formal documents required for the filing of the response before the Court and copies of documents that did not require any drafting work on the part of the intervener’s lawyers, such as previous decisions of EUIPO.
30 Furthermore, the application to which the intervener replied consisted of 15 pages, approximately 12 pages of which were devoted to the applicant’s arguments and forms of order sought. That application raised three pleas in law, the first alleging infringement of Rule 20(7)(c) 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), the second alleging infringement of Article 47(2) of Regulation 2017/1001 and Rule 20(3) of Regulation No 2868/95, and the third alleging that there is no likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).
31 Lastly, on 11 June 2020, the intervener submitted observations on the stay of the main proceedings, comprising four and a half pages and, on 5 July 2022, observations of one and a half pages in response to a measure of organisation of procedure of the Court, notified to the parties on 21 June 2022, concerning the consequences of the judgment of 9 March 2022, STONES (T‑766/20, not published, EU:T:2022:123), with regard to Case T‑200/20. The observations of 11 June 2020 were accompanied by five annexes, namely: a power of attorney granted to two of the lawyers representing the intervener before the Court and the proof of their certification to practise as lawyers, the formal documents from the intervener that are required in order to bring an action before the Court and a copy of a decision of the Cancellation Division of EUIPO of 5 December 2019.
32 It follows that the intervener’s written pleadings in Case T‑200/20 were not lengthy.
33 Secondly, since the intervener’s response sought the dismissal of the action seeking the annulment of the decision of the Fourth Board of Appeal of EUIPO of 31 January 2020, the Court must take into account the fact that the task of its representatives was facilitated since they were able to rely on the contested decision to reply to the applicant’s arguments (order of 5 February 2021, Khadi and Village Industries Commission v EUIPO – BNP Best Natural Products (Khadi, khadí Naturprodukte aus Indíen, and Khadi Ayurveda), T‑681/17 DEP to T‑683/17 DEP, not published, EU:T:2021:83, paragraph 29 and the case-law cited).
34 Furthermore, account must be taken of the fact that the law firm Groom Wilkes & Wright LLP had already assisted the intervener during the administrative procedure before EUIPO that had ended with the adoption of the contested decision in Case T‑200/20. Thus, some of the intervener’s representatives in the main proceedings were already aware of matters relevant to the action, which is likely to have facilitated their work and reduced the preparation time required for the judicial proceedings (see order of 13 January 2006, IPK-München v Commission, T‑331/94 DEP, EU:T:2006:11, paragraph 59 and the case-law cited).
35 Thirdly, where a party is represented, as in the present case, by several lawyers, it is for the Court to examine the extent to which the services provided by all the advisers concerned were necessary for the conduct of the legal proceedings and to satisfy itself that the fact that several lawyers were instructed did not entail any unnecessary duplication of costs (see order of 23 August 2023, Lück v EUIPO – R.H. Investment (MALLE), T‑188/21 DEP, not published, EU:T:2023:482, paragraph 26 and the case-law cited).
36 In the present case, it must be held that the intervention of two law firms and two barristers does not appear to be necessary since the case in question was part of a recurrent dispute before the Court and the procedural and substantive issues raised by it did not present any particular difficulty (see paragraphs 15 to 18 above).
37 In any event, it is apparent from the evidence produced by the intervener in support of the present application for taxation of costs that the collaboration between those various professionals resulted in an unnecessary duplication of efforts undertaken for the same task. In particular, it is apparent from that evidence that several lawyers worked on the drafting of the powers of attorney given to one of the two solicitors and to the two barristers for them to represent the intervener before the Court, and on the drafting of the response. In that regard, it should be borne in mind that, while it is not unusual for a lawyer to work on a task and then for his or her work to be reviewed by a more experienced lawyer, such review work is not to be confused with a duplication of hours devoted to the same task (judgment of 21 December 2021, Magic Box Int. Toys v EUIPO – KMA Concepts (SUPERZINGS), T‑549/20, not published, EU:T:2021:935, paragraph 37). Therefore, some of the working hours claimed cannot be regarded as objectively necessary.
38 Moreover, the involvement of several lawyers necessitated several coordination measures (see, for example, the following services: ‘Engaged in Conference with Counsel’, ‘Preparing draft instructions to Counsel’, ‘Reviewing GO instructions to Counsel and attachments, reviewing note from Counsel, considering next steps’, ‘Engaged liaising with SW and briefing with regard to today’s call’, ‘Preparation for call with Leading Counsel and client’, ‘Liaising with SQ to update and brief on sorting the formalities’) which gave rise to costs that were not necessary (see, to that effect, order of 13 January 2017, Idromacchine and Others v Commission, T‑88/09 DEP, EU:T:2017:5, paragraph 32 and the case-law cited).
39 Fourthly, it should be noted that several services mentioned in the evidence produced by the intervener in support of its application for taxation of costs are not connected to the conduct of the main proceedings. In particular, that appears to be the case for the service of ‘Drafting Brexit points on submissions on appeal to the Board of Appeal (SQ(T))’, provided on 14 July 2020 by a trainee from the law firm TLT LLP (see paragraph 21 above), since the question of the impact of the United Kingdom’s withdrawal from the European Union did not arise in the present case (see paragraph 16 above). Moreover, the drafting of an appeal against the Court’s decision to stay the main proceedings by one of the barristers representing the intervener cannot be regarded as necessary, since such a decision cannot, in any event, be subject to appeal. Lastly, the work done by one of the solicitors of the law firm TLT LLP in connection with the breakdown of fees and their invoicing do not relate to the main proceedings.
40 The work referred to above cannot therefore give rise to recovery of the costs relating thereto.
41 Fifthly, the recovery of costs that relate to the period when no procedural step was taken must be rejected (see orders of 10 April 2014, Éditions Odile Jacob v Commission, T‑279/04 DEP, not published, EU:T:2014:233, paragraph 39, and of 8 December 2022, Lackmann Fleisch- und Feinkostfabrik v EUIPO (Хозяйка), T‑185/21 DEP, not published, EU:T:2022:789, paragraph 18). In that regard, it must be stated that, in the present case, during the period when the main proceedings were stayed, that is to say from 18 June 2020 to 9 March 2022 (see paragraph 3 above), no procedural step was taken, with the exception of the intervener’s response, which was lodged at the Court Registry on 24 June 2020. In addition, the first procedural step following the end of the period in which proceedings were stayed was taken, by the Court, on 21 June 2022 and consisted of a measure of organisation of procedure (see paragraph 31 above). Consequently, it must be concluded that the costs relating to the period between 25 June 2020 and 20 June 2022 are not directly connected to the steps taken by the intervener’s lawyers before the Court and cannot be regarded as costs necessary for the purpose of the main proceedings (see, by analogy, order of 21 December 2010, Le Levant 015 and Others v Commission, T‑34/02 DEP, EU:T:2010:559, paragraph 33).
42 In the light of all the foregoing considerations, the amount of work required for the analysis of the application and the preparation of the response and the observations of 11 June 2020 and 5 July 2022 will be fairly assessed by fixing it at a total of 20 hours of work.
43 Consequently, at an hourly rate of EUR 250, which is considered to be appropriate for the type of litigation at issue in the present case (see, to that effect, order of 19 December 2022, STONES, T‑766/20 DEP, not published, EU:T:2022:866, paragraph 27 and the case-law cited), the amount of lawyers’ fees that must be regarded as objectively necessary for the purposes of the main proceedings is EUR 5 000, corresponding to 20 hours of work.
The costs relating to the services of the ‘Costs Draftsman’
44 It is apparent from the documents produced by the intervener in support of the application for taxation of costs that the amount that it claims by way of recoverable costs includes the costs relating to the breakdown of fees and the preparation of invoices by a ‘Costs Draftsman’, namely the sum of GBP 450 for three hours of work.
45 In that regard, it should be borne in mind that recoverable costs are limited to costs necessarily incurred by the parties for the purpose of the main proceedings (see paragraph 10 above).
46 In the present case, the documents before the Court do not provide any indication of the date on which the services of the ‘Costs Draftsman’ were provided.
47 Furthermore, in the absence of any explanation given by the intervener as to the exact extent of the services provided by the ‘Costs Draftsman’, it must be held that those services are not connected to any procedural act undertaken in the main proceedings and, therefore, cannot be regarded as necessary for the purpose of those proceedings.
48 Lastly, it must be stated that, in the context of the present application for taxation of costs, the intervener did not request the Court to fix the amount of the costs relating to the taxation proceedings, which the applicant is required to reimburse.
49 Therefore, the costs relating to the services of the ‘Costs Draftsman’ must be excluded from the calculation of the amount of recoverable costs.
Default interest
50 The intervener claims that the Court should require the applicant to pay it default interest on the amount of costs to be reimbursed.
51 According to settled case-law, an application made in the course of proceedings for taxation of costs to add default interest to the amount due must be allowed for the period between the date of notification of the order of taxation of costs and the date of actual recovery of the costs (see order of 27 November 2020, Flabeg Deutschland v Commission, T‑103/15 DEP, not published, EU:T:2020:585, paragraph 60 and the case-law cited).
52 The applicable interest rate is to be calculated taking into account Article 99(2)(b) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), on the basis of the rate applied by the European Central Bank (ECB) to its main refinancing operations in force on the first calendar day of the month in which the deadline for payment falls, increased by 3.5 percentage points (order of 25 September 2019, Bilbaína de Alquitranes and Others v Commission, T‑689/13 DEP, not published, EU:T:2019:698, paragraph 58).
53 Consequently, the amount of recoverable costs will accrue default interest, from the date of service of the present order, at the rate calculated on the basis of the rate set by the ECB for the main refinancing operations applicable during the period concerned, increased by 3.5 percentage points.
54 In the light of all the foregoing considerations, the Court considers that a fair assessment of the costs recoverable by the intervener would be to fix their amount at EUR 5 000, 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 (Second Chamber)
hereby orders:
1. The total amount of the costs to be reimbursed by Stone Brewing Co. LLC to Molson Coors Brewing Company (UK) Ltd is fixed at EUR 5 000.
2. That sum shall bear default interest from the date of service of the present order until the date on which payment is made.
Luxembourg, 19 June 2024.