Source: EURLEX
Language: en
Format: md

Case T‑726/14

Novar GmbH

v

European Union Intellectual Property Office

(Non-contractual liability - Proof of the existence, validity and scope of protection of the earlier mark - International registration designating the European Union - Decision rejecting the opposition in the absence of proof of the earlier right - Rule 19(2)(a) of Regulation (EC) No 2868/95 - Revision of the decision - Article 62(2) of Regulation (EC) No 207/2009 - Damage consisting in the lawyers’ fees - Causal link)

Summary — Judgment of the General Court (First Chamber), 17 February 2017

1. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety

   (Art. 340, second para., TFEU)
2. Non-contractual liability — Conditions — Causal link — Damage constituted by costs in relation to the pre-litigation procedure — Costs arising from the free choice of the applicant — No causal link between the damage and the conduct of the institution

   (Art. 340, second para., TFEU)
3. EU trade mark — Procedural provisions — Allocation of costs — Representation costs in the context of proceedings leading to revision in accordance with Article 62 of Regulation No 207/2009 — Not included

   (Regulation No 207/2009, Arts 62 and 85)

1. See the text of the decision.

   (see paras 25, 26)
2. The European Union can be held liable only for damage which is a sufficiently direct consequence of the wrongful conduct of the institution concerned. Where representation by a lawyer or adviser in the pre-litigation procedure is not mandatory, there is no causal link between the alleged damage, namely the cost of such representation, and any exceptionable conduct on the part of the institution or body. Although it is not possible to prohibit those concerned from seeking legal advice even at that stage, it is their own decision and the institution or agency concerned cannot be held liable for the consequences.

   (see paras 28, 31)
3. Although representation by a lawyer is not mandatory in proceedings before the European Union Intellectual Property Office, Article 85 of Regulation No 207/2009 and Rule 94 of Regulation No 2868/95 lay down rules concerning the apportionment of costs and the limits of the scales concerning the recoverable costs where a party designates a representative. However, those provisions apply only to opposition proceedings and in respect of the apportionment of costs between the parties to that procedure.

   In that regard, it should also be noted that no provision of Regulation No 207/2009 or Regulation No 2868/95 provides for the reimbursement of the costs of legal representation incurred in respect of an appeal where the department which adopted the contested decision decides to revise it in accordance with Article 62 of Regulation No 207/2009. In particular, no provision of those rules grants the successful party reimbursement by EUIPO of the costs of legal representation in such proceedings. Only the reimbursement of appeal fees is provided for by Rule 51(a) of Regulation No 2868/95, under which the department whose decision has been impugned is to order the reimbursement of appeal fees where it allows the revision in accordance with Article 61 or Article 62 of Regulation No 207/2009.

   (see paras 35, 36)

[Top](#document1)