ECLI:EU:C:2026:792

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OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 24 September 2026 (1)

Case C‑573/25

Suzhou Anri Child Products Co. Ltd

Cybex GmbH

(Request for a preliminary ruling from the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany))

( Reference for a preliminary ruling – Community designs – Proceedings for provisional measures – Lawyers’ fees in national proceedings for provisional measures – Directive 2004/48/EC – Article 9(7) – Concept of ‘injury caused by the provisional measures’ – Article 14 – Concepts of ‘legal costs’ and ‘other expenses’ – Right to the reimbursement of lawyers’ fees under the heading of damages or legal costs – Regulation (EC) No 6/2002 – Article 70(1) – Regulation (EC) No 2245/2002 – Article 79(7)(f) – Reimbursement of lawyers’ fees incurred in invalidity proceedings brought before the EUIPO sought in proceedings instituted in a Member State – Relationship between Regulation No 6/2002, Regulation No 2245/2002 and Directive 2004/48 – Limitation of costs in proceedings for a declaration of invalidity before the EUIPO )

1. In the dispute giving rise to these proceedings, which has been brought before a German court (for the purpose of ensuring the enforcement of industrial property rights), the first issue is what legal costs the successful party in proceedings for provisional measures may claim from the losing party in the same proceedings.

2. So far, the dispute does not present any particular problems and would fall to be disposed of in accordance with the relevant rules laid down in Directive 2004/48/EC. (2)

3. However, the successful party in the proceedings for provisional measures is claiming that the taxation of costs incurred before the German court should include the fees of the lawyer who represented it in two sets of proceedings, still pending, before the European Union Intellectual Property Office (EUIPO), in which it is itself seeking a declaration of invalidity of the Community designs (3) registered by the opposing party.

4. It is in this context that the referring court has asked the Court of Justice for an interpretation of Directive 2004/48 and the regulations applicable to Community designs, that is to say, Regulation (EC) No 6/2002 (4) and Regulation (EC) No 2245/2002. (5)

I. Legal framework

A. European Union law

1. Directive 2004/48

5. Article 1 (‘Subject matter’) provides:

‘This Directive concerns the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights. For the purposes of this Directive, the term ‘intellectual property rights’ includes industrial property rights’.

6. As regards the ‘general obligation’ incumbent on Member States in connection with the ‘measures, procedures and remedies’ governed by Chapter II, Article 3 provides:

‘1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.

2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.’

7. In accordance with paragraph 7 of Article 9 (‘Provisional and precautionary measures’):

‘Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures’.

8. Article 13 (‘Damages’) provides:

‘1. Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him/her as a result of the infringement.

When the judicial authorities set the damages:

(a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement;

(b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.

2. Where the infringer did not knowingly, or with reasonable grounds know, engage in infringing activity, Member States may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established’.

9. Article 14 (‘Legal costs’) provides:

‘Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this’.

2. Regulation No 6/2002

10. According to Article 70 (‘Apportionment of costs’):

‘1. The losing party in proceedings for a declaration of invalidity of a registered Community design or appeal proceedings shall bear the fees incurred by the other party as well as all costs incurred by him essential to the proceedings, including travel and subsistence and the remuneration of an agent, adviser or advocate, within the limits of scales set for each category of costs under the conditions laid down in the implementing regulation.

…’.

11. Article 78 (‘Professional representation’) states:

‘1. Representation of natural or legal persons in proceedings before the Office under this Regulation may only be undertaken by:

(a) any legal practitioner qualified in one of the Member States and having his place of business within the Community, to the extent that he is entitled, within the said State, to act as a representative in industrial property matters; or

…’

12. In the light of Article 90 (‘Provisional measures, including protective measures’):

‘…

2. In proceedings relating to provisional measures, including protective measures, a plea otherwise than by way of counterclaim relating to the invalidity of a Community design submitted by the defendant shall be admissible. Article 85(2) shall, however, apply mutatis mutandis.

…’

3. Regulation No 2245/2002

13. Article 79 (‘Apportionment and fixing of costs’) states:

‘…

7. Costs essential to the proceedings and actually incurred by the successful party shall be borne by the losing party in accordance with Article 70(1) of Regulation (EC) No 6/2002 on the basis of the following maximum rates:

…

(f) costs of representation, within the meaning of Article 78(1) of Regulation (EC) No 6/2002:

(i) of the applicant in proceedings relating to invalidity of a registered Community design up to EUR 400;

…’

B. German law

1. Zivilprozessordnung (Code of Civil Procedure) (6)

14. According to Paragraph 91 (‘Principle and scope of the obligation to bear costs’):

‘(1) The unsuccessful party shall bear the costs of the legal proceedings, in particular those incurred by the opposing party, to the extent that these costs were necessary for the proper exercise or protection of its rights …

(2) The statutory fees and expenses of the successful party’s legal counsel shall be reimbursed in all proceedings, …

…’

15. Paragraph 269 (‘Withdrawal of the action’) reads:

‘…

(3) If the action is withdrawn, the legal proceedings shall be deemed not to have been pending; a judgment already given but not yet final shall become ineffective without needing to be expressly quashed. The applicant shall bear the costs of the legal dispute unless they have already been the subject of a final ruling or are to be imposed on the defendant for another reason. …

(4) On application, the court shall decide by order on the effects arising pursuant to subparagraph 3. …

…’

16. Paragraph 945 (‘Obligation to compensate for damage’) states:

‘Should a seizure order or the issue of an interlocutory injunction prove to be unjustified from the outset or should the measure ordered be revoked on the basis of Paragraph 926(2) or Paragraph 942(3), the party which obtained the order shall be obliged to compensate the opposing party for the damage incurred by the latter as a result of the enforcement of the measure or as a result of having provided a security to avert enforcement of the measure or secure its revocation’.

2. Gesetz über die Vergütung der Rechtsanwältinnen und Rechtsanwälte – Rechtsanwaltsvergütungsgesetz (Law on the remuneration of legal counsel) (7)

17. Paragraph 2 (‘Amount of remuneration’) states:

‘(1) Unless otherwise provided for in this Law, fees shall be calculated on the basis of the value of the claim forming the subject of the services being provided by legal counsel (value of the claim).

(2) The amount of the remuneration shall be determined in accordance with the remuneration schedule contained in Annex 1 to this Law. …’

18. Paragraph 13 (‘Wertgebühren’) contains a schedule of ad valorem fees setting out the basic fee corresponding to each claim value bracket.

II. Facts, disputes and questions referred for a preliminary ruling

19. Cybex GmbH and Suzhou Anri Child Products Co. Ltd (‘Suzhou’) manufacture pushchairs which they market within the European Union. (8)

20. At a trade fair held from 8 to 10 September 2022 in Cologne (Germany), Suzhou exhibited, made available to visitors and distributed its ‘S63’ model.

21. Taking the view that Suzhou was infringing its industrial property rights, Cybex issued a warning notice requiring Suzhou to refrain from marketing the ‘S63’ model.

22. The dispute between the two undertakings has given rise to two sets of proceedings of a different nature: one for provisional measures before the referring court and the other for a declaration of invalidity before the EUIPO.

A. Proceedings for provisional measures before the German court

23. Suzhou having failed to comply with Cybex’s warning notice, Cybex filed with the Landgericht Düsseldorf (Regional Court, Düsseldorf) an application for provisional measures in which it claimed that Suzhou was infringing its designs. In the alternative, it argued that, the ‘S63’ model being an imitation of Cybex’s original, Suzhou was creating a likelihood of confusion with the original by offering it for sale.

24. On 9 September 2022, the Landgericht Düsseldorf (Regional Court, Düsseldorf) issued an order for provisional measures prohibiting Suzhou from offering for sale, advertising, marketing, importing or exporting its ‘S63’ pushchair, or possessing it for those purposes, in the Federal Republic of Germany.

25. On 31 October 2022, Suzhou appealed against the order for provisional measures before the court which had issued it.

26. On 22 December 2022, the Landgericht Düsseldorf (Regional Court, Düsseldorf) lifted the provisional measure.

27. On 27 December 2022, Cybex lodged an appeal before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) with a view, in essence, to obtaining the reinstatement of the provisional measure.

28. On 28 April 2023 and 26 May 2023, before the appeal had been disposed of, Cybex withdrew it.

29. On 16 October 2023, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) ordered Cybex to pay the costs of the proceedings for provisional measures.

B. Proceedings for a declaration of invalidity before the EUIPO

30. On 17 November 2022, in parallel with the appeal lodged against the order for provisional measures before the German courts, Suzhou filed applications with the EUIPO for declarations of invalidity of each of the two designs registered by Cybex.

31. The proceedings before the EUIPO are still pending.

C. Taxation of costs in the proceedings for provisional measures

32. On 16 October 2023, Suzhou requested the Landgericht Düsseldorf (Regional Court, Düsseldorf) to tax the costs of the proceedings for provisional measures at both instances. Its application included not only the lawyer’s fees but also travel costs and other expenses.

33. By order of 6 December 2023, the Landgericht Düsseldorf (Regional Court, Düsseldorf) fixed the total amount of the costs of the proceedings for provisional measures which Cybex was required to reimburse to Suzhou at EUR 8 748.04.

34. Suzhou lodged before the same court, the Landgericht Düsseldorf (Regional Court, Düsseldorf) an appeal, in which it claimed that that court should add to the costs incurred in connection with its defence in the proceedings for provisional measures those corresponding to the proceedings for a declaration of invalidity before the EUIPO. The two sets of costs amounted in total to EUR 100 966.77.

35. In support of its claim, Suzhou argued that:

– The defence against the order for provisional measures did not consist solely in lodging an appeal and stating the reasons for it, but also in challenging Cybex’s designs before the EUIPO.

– The costs of its lawyers in the invalidity proceedings before the EUIPO form part of the costs of the proceedings for provisional measures. They constitute damage sustained as a consequence of proceedings for provisional measures that were instituted against it by Cybex and were ultimately unsuccessful.

36. It is against this background that the Landgericht Düsseldorf (Regional Court, Düsseldorf) has referred to the Court of Justice for a preliminary ruling 12 questions, of which I shall reproduce only the seventh, eighth and ninth. These are worded as follows:

‘(7) Are Articles 70(1) and (6) of [Regulation No 6/2002] and Article 79(7)(h) of [Regulation No 2245/2002] to be interpreted as meaning that, without prejudice to the application of the first sentence of Article 48(1) of the [Agreement on Trade-Related Aspects of Intellectual Property Rights, that constitutes Annex 1C to the Agreement Establishing the World Trade Organization (WTO)], they lay down a definitive rule on whether and to what extent a party to proceedings before the … (EUIPO) for a declaration as to the invalidity of a registered EU design may claim reimbursement of the “costs incurred by [it which are] essential to the proceedings” within the meaning of Article 70(1) of Regulation No 6/2002, with the result that the powers which the Member States confer on the courts on the basis of Article 9(7) or Article 14 of the Directive 2004/48 need not and must not be aimed at granting the party concerned a more extensive claim to reimbursement of the “costs incurred by [it which are] essential to the proceedings” within the meaning of Article 70(1) of Regulation No 6/2002?

(8) If, according to the answer to Question 7, the rules on costs contained in Regulation No 6/2002 and [Regulation No 2245/2002] do not preclude the application of Article 14 of Directive 2004/48, may the “other expenses” connected with judicial proceedings in which it falls to be examined, on a request made by the defendant in accordance with the second subparagraph of Article 9(4) of [Directive 2004/48], whether a provisional measure which has been requested and issued against the defendant for infringement of a registered EU design, in accordance with Article 3 and Article 9(1)(a) of [Directive 2004/48] in conjunction with Article 19(1), 89(1) and 90(1) of Regulation No 6/2002, must be revoked, modified or confirmed in the light of the hearing given to the defendant, which are to be reimbursed to the defendant in accordance with Article 14 of [Directive 2004/48], also include the costs of legal counsel which the defendant has incurred in order to file an application at the EUIPO for a declaration of invalidity of the registered EU design?

(9) If Question 3 has been answered in the affirmative and, according to the answer to Question 8, the costs of legal counsel incurred by the defendant in its capacity as a party to the invalidity proceedings brought by it before the EUIPO may be included in the “other expenses” for which it is to be reimbursed as the “successful party” in the proceedings for the issue of a provisional measure, in accordance with Article 14 of [Directive 2004/48], are the costs of legal counsel incurred in connection with invalidity proceedings “reasonable and proportionate” and, “as a general rule”, to be borne by the unsuccessful party, even if they exceed those corresponding to the maximum rates laid down in the first subparagraph of Article 79(7) of [Regulation No 2245/2002], and is it necessary,

I. in the course of that examination, or

II. in the course of the examination as to whether “equity does not allow” an order requiring the unsuccessful party to bear those costs even if they exceed those corresponding to the maximum rates, also, to take into account the factors listed in Question 4, points (a) to (d), as well as, in addition, the fact that the defendant could have raised a plea as to the invalidity of the registered EU design in the course of exercising the right to be heard guaranteed to it by the second subparagraph of Article 9(4) of [Directive 2004/48], in accordance with the first sentence of Article 90(2) of Regulation No 6/2002?’

III. Procedure before the Court of Justice

37. The request for a preliminary ruling was registered at the Court of Justice on 1 September 2025.

38. Written observations have been lodged by Suzhou and the European Commission. Both, together with Cybex, attended the hearing held on 17 June 2026.

39. As directed by the Court of Justice, this Opinion will address the seventh, eighth and ninth questions referred for a preliminary ruling.

IV. Assessment

A. Definition of the dispute

40. The referring court has submitted for a preliminary ruling 12 questions which can be grouped into two sets:

– The first six relate to the proceedings for provisional measures brought before the German courts of first instance and appeal. These seek an interpretation of the provisions of Directive 2004/48 concerning legal costs and compensation . They raise the issue of the heading under which lawyers’ fees might fall.

– The last six (seventh to twelfth questions) have to do with the reimbursement of costs incurred in connection with representation by a lawyer in proceedings for a declaration of invalidity brought before the EUIPO, which are governed by Regulations No 6/2002 and No 2245/2002.

– In particular, the seventh, eighth and ninth questions ask whether the costs of the lawyers who acted in the proceedings for a declaration of invalidity before the EUIPO are covered not only by the aforementioned two regulations but also by the provisions of Directive 2004/48.

B. Inadmissibility of the seventh, eighth and ninth questions

41. As I have already indicated, Suzhou claims that the taxation of costs connected with the proceedings for provisional measures brought before the German courts should include a heading for lawyers’ fees incurred in the proceedings before the EUIPO (in which it sought a declaration of the invalidity of the designs registered by Cybex).

42. The Landgericht Düsseldorf (Regional Court, Düsseldorf) notes that, under German law, the right to the reimbursement of court costs is limited, in principle, to the costs incurred in connection with the proceedings for provisional measures. It does not therefore cover the costs connected with the proceedings pursued before the EUIPO.

43. Nonetheless, that same court has referred to the Court of Justice a number of questions concerning the interpretation of the provisions of Regulations No 6/2002 and No 2245/2002 governing the reimbursement of legal costs connected with proceedings for a declaration of invalidity pursued before the EUIPO.

44. For the reasons which I shall set out below, I consider this part of the reference for a preliminary ruling to be inadmissible.

45. Regulation No 6/2002 establishes a single autonomous system for the protection of Community designs (now EU designs) that is built around the intervention of the EUIPO. Title VI of that regulation provides for a procedure for processing applications for a declaration of invalidity of registered designs.

46. Those proceedings are conducted by the EUIPO’s Invalidity Division, which, following an inter partes exchange of observations, rules on the application for a declaration of invalidity. Its ruling is open to challenge before the EUIPO’s Boards of Appeal, whose decisions are subject to subsequent review by the Court of Justice of the European Union.

47. Article 70 of Regulation No 6/2002 deals with the apportionment of costs. In accordance with paragraph 1 thereof, the losing party in proceedings for a declaration of invalidity of a registered EU design or appeal must bear the fees incurred by the other party as well as all costs incurred by him or her essential to the proceedings, including travel and subsistence and the remuneration of an agent, adviser or advocate, within the limits of scales set for each category of costs under the conditions laid down in the implementing regulation.

48. Regulation No 2245/2002 confirmed that costs essential to the proceedings and actually incurred by the successful party in proceedings for a declaration of invalidity before the EUIPO are to be borne by the losing party. To that end, it sets out a number of maximum values by category of costs. (9)

49. The rules governing the costs of proceedings for a declaration of invalidity pursued before the EUIPO, as established in Regulations No 6/2002 and No 2245/2002, rest on an inescapable premiss: the existence of a losing party that must bear the costs essential to those proceedings.

50. Where, as here, the proceedings before the EUIPO have not been concluded, there can be no talk of a losing party or a successful party, and it is not (yet) possible to consider the issue of payment of the costs incurred in those proceedings, including under the heading of representation, from the point of view of who, how, in what amount and when.

51. Any question concerning the interpretation of the provisions of Regulations No 6/2002 and No 2245/2002 governing the apportionment of costs by the bodies of the EUIPO at the end of the invalidity proceedings is therefore premature.

52. The inadmissibility of the seventh, eighth and ninth questions referred for a preliminary ruling is made all the more apparent by the fact that the dispute from which those questions arise has to do not with the proceedings for a declaration of invalidity before the EUIPO (over which the referring court has no jurisdiction) but with separate judicial proceedings that were concerned only with whether or not provisional measures should be issued in response to an alleged infringement of industrial property rights.

53. As I have already noted, the referring court states that its decision on the right to reimbursement of court costs is in principle confined to the costs incurred in the course of the proceedings for provisional measures. However, it subsequently appears to downplay the importance of the fact that the proceedings before the EUIPO are still pending, as if this were not relevant to the settlement of the claim pursued by Suzhou, which is attempting to include the costs of the proceedings before the EUIPO in the costs of the national proceedings.

54. In this regard, the referring court says that ‘it does not matter what the outcome of the invalidity proceedings was’. (10) However, that statement is unacceptable inasmuch as it disregards Article 70(1) of Regulation No 6/2002.

55. The provisions of Regulations No 6/2002 and No 2245/2002 on legal costs are intended to lay down exhaustive rules governing, inter alia, the right to reimbursement of the remuneration owed to the lawyer representing the party which has been successful in proceedings for a declaration of invalidity pursued before the EUIPO.

56. Under those provisions, the successful party in proceedings for a declaration of invalidity before the EUIPO may not claim reimbursement of its lawyers’ fees in an amount greater than that fixed by those regulations. Consequently, the referring court cannot circumvent the rules arising from them in order to decide, in proceedings for provisional measures separate from those being pursued before the EUIPO and before the latter gives its ruling, on the costs of the lawyer acting in the proceedings for a declaration of invalidity.

57. Recognising the admissibility of questions referred for a preliminary ruling such as these could have the effect of shifting disputes over costs incurred in proceedings before the EUIPO to national courts before those proceedings have even been concluded. The rules on the apportionment of costs laid down in Regulations No 6/2002 and No 2245/2002 would thus be rendered ineffective.

58. The questions referred for a preliminary ruling on the rules governing the apportionment of legal costs that are laid down in Regulations No 6/2002 and No 2245/2002 are therefore irrelevant to the resolution of the dispute in the main proceedings. (11)

C. Analysis (in the alternative) of the substance of the case

59. In the event that the Court should consider the seventh to ninth questions referred for a preliminary ruling to be admissible, I shall comment on their substance.

60. As I have already said, the dispute concerns the reimbursement (subject to a specific time limit) (12) of the fees of the lawyer that represented Suzhou in the proceedings for a declaration of invalidity pursued before the EUIPO on that undertaking’s instruction.

61. The issues raised by the three questions are interlinked. In essence, they are as follows:

– Is the system for the taxation of costs before the EUIPO exclusive and exhaustive? If so, it would not be possible to claim before the national courts any more than the amount determined in accordance with that system.

– If the EUIPO system is not exclusive and exhaustive, is it possible to carry over the costs of proceedings for a declaration of invalidity before the EUIPO to the taxation of costs connected with national judicial proceedings for provisional measures, under the heading of ‘other expenses’?

– If such ‘other expenses’ are included in the taxation of costs connected with the national proceedings for provisional measures, is the amount thereof limited by the ceilings laid down in Regulation No 2245/2002?

62. My analysis will look first at the relationship between Directive 2004/48, Regulations No 6/2002 and No 2245/2002. It will then focus on the nature of the fees of lawyers acting in proceedings for a declaration of invalidity pursued before the EUIPO.

1. Relationship between Directive 2004/48, Regulations No 6/2002 and No 2245/2002

63. The provisions of Regulations No 6/2002 and No 2245/2002 concerning legal costs contain a special regime (lex specialis) laying down exhaustive rules on, inter alia, reimbursement of the remuneration received by the lawyer representing the successful party in proceedings for a declaration of invalidity pursued before the EUIPO.

64. That regime gives rise to the following consequences:

– The successful party may not claim reimbursement of its lawyers’ fees from the losing party in an amount greater than that fixed in Regulations No 6/2002 and No 2245/2002.

– National authorities are not involved in the taxation of costs. This is a matter for the EUIPO, acting through the Invalidity Division or the Board of Appeal.

– The final decision of the EUIPO fixing the amount of costs is enforceable. (13)

65. Article 70 of Regulation No 6/2002 and the complementary Article 79(7) of Regulation No 2245/2002 contain, as I have said, exhaustive rules governing claims for the reimbursement of legal costs as between the parties to proceedings for a declaration of invalidity pursued before the EUIPO.

66. Costs incurred in connection with representation entrusted to a lawyer in proceedings for a declaration of invalidity pursued before the EUIPO will be reimbursable only: (a) in accordance with those provisions; and (b) in so far as the party claiming reimbursement is the successful party in those proceedings.

67. The reimbursement of costs incurred in connection with representation entrusted to a lawyer in proceedings for a declaration of invalidity pursued before the EUIPO, which are regarded as legal costs, is not therefore governed by Article 9(7) or Article 14 of Directive 2004/48.

68. The proceedings for provisional measures before the national court and the invalidity proceedings before the EUIPO are mutually exclusive, (14) in the sense that they are each governed by their own rules. More specifically, the rules governing the apportionment of costs before the EUIPO do not apply to national proceedings and vice versa.

69. Contrary to what Suzhou maintains, (15) it is irrelevant to the matter at issue here that the provisions on costs contained in Regulation No 6/2002 predate Directive 2004/48. The latter did not change the cost recovery system provided for in Regulations No 6/2002 and No 2245/2002. That system, with features unique to it in terms of substance and procedure, remained intact and was not reviewed by Directive 2004/48.

70. The rules on costs contained in Regulations No 6/2002 and No 2245/2002, which apply to proceedings before the EUIPO, therefore constitute an autonomous, exclusive and comprehensive system separate from that under Directive 2004/48.

71. In short, if the seventh question referred for a preliminary ruling were admissible, the answer would have to be that Regulations No 6/2002 and No 2245/2002 are alone applicable to the dispute. That answer automatically precludes the need to address the eighth and ninth questions, the premiss for which is that Article 14 of Directive 2004/48 applies in circumstances such as those in the present case.

72. In the further alternative, I shall nonetheless address the remaining questions referred for a preliminary ruling.

2. Nature of lawyers’ fees

73. If (quod non) Directive 2004/48 were applicable to costs incurred in invalidity proceedings before the EUIPO, it would fall to be determined whether lawyers’ fees could be reimbursed under any of the headings set out in that directive (compensation for damages, legal costs or ‘other expenses’).

74. Section 6 of Chapter II of Directive 2004/48 is devoted to ‘Damages and legal costs’. It contains two articles:

– Article 13 (‘Damages’) governs the payment of damages that may be claimed by any party injured by the harm suffered as a result of the infringement of an intellectual property right.

– Article 14 (‘Legal costs’) governs both legal costs in the strict sense and ‘other expenses’ arising from proceedings to enforce intellectual property rights that may be awarded against the losing party in a dispute.

75. In my Opinion in United Video Properties, (16) I noted that lawyers’ fees form part of legal costs: ‘lawyers’ fees are, by definition, included in “legal costs” (17) and that occurs … in the Rules of Procedure of the Court of Justice’. (18)

76. The judgment in United Video Properties confirmed that approach: ‘as regards, first, the concept of “legal costs” to be reimbursed by the unsuccessful party appearing in Article 14 of Directive 2004/48, it must be observed that that concept includes, amongst others, the lawyer’s fees, … which constitute generally a substantial part of the costs incurred in the context of proceedings aimed at ensuring the enforcement of an intellectual property right’. (19)

77. Consequently, lawyers’ fees, in so far as they form part of legal costs, cannot at the same time be regarded as damages without blurring the distinction which Directive 2004/48 itself draws between those concepts.

78. According to the Court of Justice, however, certain costs incurred in connection with the intervention of a lawyer can be distinguished from fees: ‘the expenses incurred by a holder of intellectual property rights in respect of his or her representation by a lawyer in order to ensure that those rights are enforced out of court, such as the costs of giving warning notice, are covered by the concept of “other expenses” within the meaning of that provision’. (20)

79. Suzhou argues that lawyers’ fees incurred in invalidity proceedings before the EUIPO should be classified as ‘other expenses’ within the meaning of Article 14 of Directive 2004/48. (21) In its opinion, they are ‘directly and closely linked to the judicial proceedings concerned’. (22)

80. In order to justify the direct and close link between the invalidity proceedings before the EUIPO and the proceedings for provisional measures before the German courts, Suzhou submits that the former form part of a defence strategy commonly employed in response to challenges based on registered rights. (23)

81. In that line of argument, Suzhou claims that:

– Cybex’s application for provisional measures compelled Suzhou to mount a defence more extensive than the mere raising of a plea of invalidity in the proceedings for provisional measures.

– Directive 2004/48 makes provision for a decision on the merits in Article 9(5). Nonetheless, at the time when Suzhou challenged the provisional measure, it could not yet have known whether a decision on the merits was going to be given. Consequently, if it wished to benefit from the advantages of invalidity proceedings, it had to institute those proceedings when the application for the issue of a provisional measure was filed against it.

82. I am not convinced by Suzhou’s line of argument. I do agree, conversely, with the Commission when it states that the lawyers’ fees connected with the invalidity proceedings before the EUIPO bear no relation to the proceedings for provisional measures before the German courts. The former are ‘… costs incurred in the context of proceedings separate from, and independent of, those forming the subject of the present request for a preliminary ruling, the recoverability of which must therefore be assessed exclusively in the context of those separate proceedings’. (24)

83. In accordance with Article 90(2) of Regulation No 6/2002, ‘in proceedings relating to provisional measures, including protective measures, a plea otherwise than by way of counterclaim relating to the invalidity of a Community design submitted by the defendant shall be admissible. …’.

84. Consequently, there was no need to institute proceedings for a declaration of invalidity before the EUIPO when Regulation No 6/2002 provides a means of obtaining a ruling on the merits with respect to the invalidity of the design as part of the (national) proceedings for provisional measures. The referring court recognises that ‘the defendant [(Suzhou)] could have raised a plea as to the invalidity of the registered EU design in the course of exercising the right to be heard [in the proceedings for provisional measures] …’. (25)

85. Even if it were accepted, purely hypothetically, that such a direct and close link with the proceedings for provisional measures existed, the principle established in the judgment in Koch Media must not be taken out of context. That case concerned an out-of-court course of action by which the party which considered its industrial property right to have been challenged sought to avoid a dispute. To that end, it engaged the services of a lawyer to issue an out-of-court warning notice. (26)

86. The fact that the lawyer’s remuneration analysed in the judgment in Koch Media fell within the concept of ‘other expenses’, in the light of its having been paid out of court, does not mean that, in this case, the costs incurred in connection with the intervention of Suzhou’s lawyer before the EUIPO are of the same nature.

87. Inasmuch as it made the free choice to seek a declaration of invalidity via the procedure provided for in Regulation No 6/2002, Suzhou must comply with the rules governing that procedure, under which lawyers’ fees are included in the taxation of costs carried out by the bodies of the EUIPO in accordance with the specific provisions of that regulation. Consequently, the costs incurred in connection with the intervention of Suzhou’s lawyer in the proceedings for a declaration of invalidity before the EUIPO constitute legal costs rather than ‘other expenses’. (27)

88. Article 9(7) of Directive 2004/48, concerning precautionary measures which, having been applied, have lapsed, does not have any bearing on the outcome of this case either. In such circumstances, that provision provides for the compensation which the defendant may claim ‘for any injury caused by those measures’.

89. However, it would be difficult to accept that the intervention of Suzhou’s lawyer in the invalidity proceedings before the EUIPO (which are independent of the proceedings for provisional measures) constitutes an injury caused by the imposition of the provisional measure. (28) On the contrary, Suzhou’s decision to apply to the EUIPO when it could have raised the matter of the potential invalidity of the designs at issue before the national court was a unilateral one adopted as part of its own procedural strategy. (29)

3. Limits on the costs fixed in Regulation No 2245/2002

90. Suzhou submits that the national court with jurisdiction to decide on costs arising from proceedings for provisional measures may also rule on the reimbursement of the fees paid to its lawyer in the course of the proceedings for a declaration of invalidity before the EUIPO, even if these exceed the limits laid down in Regulation No 2245/2002.

91. Suzhou argues that the limits laid down in Regulation No 2245/2002 are very low and do not reflect the reality of the fees usually charged for lawyers’ services in the intellectual property sector. The reimbursement it would be entitled to seek from the losing party under that heading would therefore be disproportionate or even negligible. (30)

92. The response to that submission might simply be that, since the invalidity proceedings before the EUIPO are still pending, it is not inconceivable that Suzhou, rather than having a claim to reimbursement of the costs incurred in those proceedings, might be ordered to pay the costs (if it is unsuccessful in those invalidity proceedings), or at least to bear its own costs. This fact alone highlights the inconsistency of its proposition.

93. What is more, nobody in this dispute has contested the validity of the provisions of Regulation No 2245/2002 that impose quantitative limits on costs in invalidity proceedings before the EUIPO. Those limits:

– are in keeping with the nature of a simplified and easily accessible administrative procedure the cost of which is not prohibitive; (31)

– comply with the requirement of foreseeability and legal certainty, which ‘… must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them’. (32)

V. Conclusion

94. In the light of the foregoing, I propose that the Court declare inadmissible the seventh, eighth and ninth questions referred for a preliminary ruling by the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany).

In the alternative, I propose that those questions be answered as follows:

Article 70(1) and (6) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs, and Article 79(7)(f) of Commission Regulation No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs

must be interpreted as meaning that they contain exhaustive rules on the system for the imposition, apportionment and determination of costs in proceedings pursued before the EUIPO for a declaration of invalidity of a registered Community design. The obligation to reimburse such costs connected with those proceedings as are to be awarded to the successful party, in so far as it relates to lawyers’ fees, is not governed by Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.

1 Original language: Spanish.

2 Directive of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45; corrigendum in OJ 2004 L 195, p. 16).

3 The term ‘Community designs’ used in the dispute in the main proceedings corresponds to the current term ‘EU designs’.

4 Council Regulation of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1). Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 amending Council Regulation (EC) No 6/2002 and repealing Commission Regulation (EC) No 2246/2002 (OJ L, 2024/2822) is not applicable to this dispute ratione temporis.

5 Commission Regulation of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs (OJ 2002 L 341, p. 28).

6 RGBl. 1877, p. 83.

7 BGBl. 2004 I, p. 718.

8 Cybex is the proprietor of designs Nos 002510883-0005 and 002510883-0006, registered with the EUIPO. The range of products which it markets includes a pushchair, available in several colours and versions, the chassis of which is manufactured in accordance with the representations entered in the Register of European Union Designs.

9 Article 79(7)(f)(i) of Regulation No 2245/2002 provides that costs of representation, within the meaning of Article 78(1) of Regulation No 6/2002, of the applicant in proceedings relating to invalidity of a registered Community design are not to exceed EUR 400.

10 This appears in the third subparagraph of section III(2)(a) of the order for reference (which is not numbered). Paragraph 2 deals with the ‘second issue in dispute’, that is to say, the right to reimbursement of the costs incurred in connection with representation in the invalidity proceedings before the EUIPO.

11 It is true that questions referred for a preliminary ruling by national courts enjoy a presumption of relevance. In this case, however, that presumption is rebutted. It would be unreasonable to accept the reference for a preliminary ruling as being admissible when it is still unknown whether there is a right to claim the lawyers’ fees incurred in the invalidity proceedings before the EUIPO.

12 Reimbursement is sought for the costs incurred up to a date that coincides with the end of the appeal in the proceedings for provisional measures.

13 Article 71(3) and (4) of Regulation No 6/2002 allows the party concerned to apply to the competent authority for enforcement in accordance with the national law. Although it is the courts of the Member State affected that hear and determine actions brought for non-compliance with enforcement orders, enforcement may be suspended only by decision of the Court of Justice.

14 At the hearing, Suzhou made the clarification, without adding any new arguments to what it had stated in its written observations, that the mutual exclusivity of the two sets of proceedings does not prevent account being taken of other provisions of EU law, such as Article 9(7) and Article 14 of Directive 2004/48.

15 Paragraph 61 of Suzhou’s written observations.

16 C‑57/15, EU:C:2016:201 (‘the Opinion in United Video Properties’), point 49.

17 I do not consider it relevant that, during the process of drafting the directive, the express reference to lawyers’ fees disappeared from Article 14, since, whether explicitly mentioned or not, such fees are one of the most characteristic items of litigation costs.

18 Article 144(b) of the Rules of Procedure of the Court of Justice.

19 Judgment of 28 July 2016, United Video Properties (C‑57/15, EU:C:2016:611, paragraph 22; ‘the judgment in United Video Properties’).

20 Judgment of 28 April 2022, Koch Media (C‑559/20, EU:C:2022:317; ‘the judgment in Koch Media’), paragraph 1 of the operative part.

21 Section IV(3) of Suzhou’s written observations (paragraph 52 et seq.).

22 Suzhou uses the wording of the judgment in Koch Media, paragraph 41.

23 At the hearing, the Commission criticised that proposition, on the ground that the degree to which a practice is common does not constitute a valid argument in law.

24 Commission’s written observations, paragraph 65.

25 Ninth question referred for a preliminary ruling, in fine. At the hearing, Cybex acknowledged that, if the plea of invalidity had been raised before the German courts, the fees could have been included in the taxation of costs connected with the proceedings for provisional measures.

26 These were ‘expenses incurred by a holder of intellectual property rights in respect of his or her representation by a lawyer in order to ensure that those rights are enforced out of court, such as the costs of giving warning notice’ (paragraph 45 of the judgment in Koch Media).

27 The Commission shares that view in paragraph 65 of its written observations.

28 In paragraph 27 of its written observations, Suzhou notes that the German courts adopt a strict interpretation of the concept of injury caused by the imposition of a provisional measure, excluding from it costs arising from the intervention of a lawyer either to mount a defence against the provisional measure or to bring a counterclaim (by bringing an action for a declaration of invalidity, for example).

29 At the hearing, Cybex stated that the range of defensive strategies available in response to the adoption of provisional measures is very broad, and referred to the possibility, for example, of bringing proceedings in various EU countries in order to hinder the progress of the proceedings for provisional measures pursued in another Member State.

30 Paragraph 36 of its written observations, which cites the judgment in United Video Properties, paragraph 30.

31 Recital 24 of Regulation No 6/2002 states, albeit in reference to the acquisition of a registered Community design: ‘… it is a fundamental objective of this Regulation that the procedure … should present the minimum cost and difficulty to applicants, so as to make it readily available to small and medium-sized enterprises as well as to individual designers’. Recital 27 of the same regulation links the establishment of a procedure for hearing actions concerning the validity of Community designs to the aim of ‘savings in costs and time’.

32 This was asserted in the Opinion in United Video Properties, point 61, which cites the judgment of 15 December 1987, Ireland v Commission (325/85, EU:C:1987:546, paragraph 18).

Opinion of Advocate General Campos Sánchez-Bordona delivered on 24 September 2026.###

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