OF THE PRODUCTS IN QUESTION WHICH IS THE FACTOR THAT DETERMINES THE PARTICULAR CHARACTERISTICS OF BITTER CAMPARI IS A TRADE SECRET WHICH THE LICENSOR CANNOT BE REQUIRED UNDER COMMUNITY LAW TO REVEAL TO ITS LICENSEES ,
- THE LICENSEES ARE REQUIRED TO REFRAIN FROM DIVULGING THE MANUFACTURING PROCESSES TO THIRD PARTIES . THIS OBLIGATION IS ESSENTIAL IF SECRET TECHNIQUES OR RECIPES ARE TO BE PASSED ON FOR USE BY OTHER UNDERTAKINGS ,
- THE LICENSEES ARE OBLIGED TO MAINTAIN CONTINUOUS CONTACT WITH CUSTOMERS AND TO SPEND A STANDARD MINIMUM SUM ON ADVERTISING BITTER CAMPARI . IN THE PRESENT CASE THERE IS NOTHING TO SUGGEST THAT THE AMOUNT OF THE SUM IN QUESTION WOULD PREVENT THE LICENSEES FROM ENGAGING IN OTHER ACTIVITIES OR CARRYING ON THEIR OWN ADVERTISING ALSO ,
- THE LICENSEES ARE PROHIBITED FROM ASSIGNING THE BENEFIT OF THE AGREEMENT . BY BANNING ASSIGNMENTS , THE LICENSOR IS SIMPLY SAFEGUARDING ITS FREEDOM TO SELECT ITS LICENSEES . WHEN IT ENTERS INTO AN AGREEMENT THE IDENTITY OF THE OTHER PARTY IS HIGHLY MATERIAL TO IT AND IT MUST REMAIN FREE TO DECIDE WITH WHOM IT WILL DEAL .
III . APPLICABILITY OF ARTICLE 85 ( 3 ) OF THE EEC TREATY
UNDER ARTICLE 85 ( 3 ) THE PROVISIONS OF ARTICLE 85 ( 1 ) MAY BE DECLARED INAPPLICABLE TO AGREEMENTS BETWEEN UNDERTAKINGS WHICH CONTRIBUTE TO IMPROVING THE PRODUCTION AND DISTRIBUTION OF GOODS OR TO PROMOTING TECHNICAL OR ECONOMIC PROGRESS , WHILE ALLOWING CONSUMERS A FAIR SHARE OF THE RESULTING BENEFIT , AND WHICH DO NOT :
( A ) IMPOSE ON THE UNDERTAKINGS CONCERNED RESTRICTIONS WHICH ARE NOT INDISPENSABLE TO THE ATTAINMENT OF THESE OBJECTIVES ;
( B ) AFFORD SUCH UNDERTAKINGS THE POSSIBILITY OF ELIMINATING COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION .
A . THE RESTRICTIONS ON COMPETITION MENTIONED AT POINTS 1 TO 4 OF ITEM II A SATISFY THE TESTS OF ARTICLE 85 ( 3 ) .
1 . THE EXCLUSIVITY GRANTED BY CAMPARI-MILANO CONTRIBUTES TO IMPROVING THE PRODUCTION AND DISTRIBUTION OF THE PRODUCTS . BY GIVING EACH LICENSEE A GUARANTEE THAT NO OTHER UNDERTAKING WILL OBTAIN A LICENCE WITHIN ITS ALLOCATED TERRITORY , AND THAT IN THIS TERRITORY NEITHER CAMPARI-MILANO NOR ANY OTHER LICENSEE MAY MANUFACTURE PRODUCTS BEARING THE LICENSOR'S TRADEMARK THIS COMMITMENT CONFERS UPON EACH LICENSEE AN ADVANTAGE IN ITS ALLOTTED TERRITORY . THIS TERRITORIAL ADVANTAGE IS SUCH AS TO PERMIT A SUFFICIENT RETURN ON THE INVESTMENT MADE BY EACH LICENSEE FOR THE PURPOSE OF MANUFACTURING THE PRODUCT BEARING THE TRADEMARK UNDER CONDITIONS ACCEPTABLE TO THE LICENSOR AND HOLDER OF THE TRADEMARK , AND IT ENABLES THE LICENSEE TO INCREASE ITS PRODUCTION CAPACITY AND CONSTANTLY TO IMPROVE THE ALREADY LONG ESTABLISHED DISTRIBUTION NETWORK .
IN PRACTICE THE EXCLUSIVITY GRANTED HAS ALLOWED EACH LICENSEE TO IMPROVE ITS EXISTING PLANT AND TO BUILD NEW PLANT . IT HAS ALSO ENABLED EACH LICENSEE TO STRENGTHEN ITS EFFORTS TO PROMOTE THE BRAND , DOUBLING THE TOTAL VOLUME OF SALES IN THE BENELUX COUNTRIES