THEREOF ONLY ' ' THE NEW APPEARANCE OF A PRODUCT SERVING A UTILITY PURPOSE ' ' . BY VIRTUE OF ARTICLE 4 , PRODUCTS KNOWN IN THE PAST BUT FORGOTTEN FOR 50 YEARS IN THE BENELUX COUNTRIES MAY BE NEW WITHIN THE MEANING OF THE LAW . FURTHERMORE THE UNIFORM LAW DOES NOT REQUIRE THAT THE NOVELTY BE THE RESULT OF A CREATIVE ACT , THAT IS TO SAY , ESSENTIALLY ARTISTIC . CONTRARY TO WHAT KEURKOOP MAINTAINS , ARTICLE 3 ( 1 ) WHICH PROVIDES THAT ' ' THE EXCLUSIVE RIGHT TO A DESIGN SHALL BE ACQUIRED BY THE PERSON WHO IS FIRST TO FILE IT ' ' IS IN NO WAY BASED ON THE PRESUMPTION THAT THE PERSON FILING THE DESIGN IS THE AUTHOR OF IT . THE UNIFORM LAW SEEKS TO PROTECT THE INDUSTRIAL MANUFACTURER OR CRAFTSMAN WHO WISHES HIS PRODUCT , WHETHER IT BE ARTISTIC OR COMMONPLACE , TO BE DISTINGUISHED FROM OTHERS , AND IT DOES NOT MATTER WHETHER THE PERSON FILING THE DESIGN IS AN INDUSTRIAL MANUFACTURER OR CRAFTSMAN . THE AIM OF THE LAW IS TO PREVENT THE INFRINGEMENT DURING A SPECIFIC PERIOD OF DESIGNS CHOSEN BY INDUSTRIAL MANUFACTURERS AND CRAFTSMEN AND THE TEST OF INFRINGEMENT IS WHETHER THE PUBLIC MAY EASILY MISTAKE ONE DESIGN FOR ANOTHER .
12 IN VIEW OF THE TWO OTHER SUBMISSIONS MADE TO IT BY KEURKOOP THE NATIONAL COURT CONSIDERS IT NECESSARY TO REFER THE FOLLOWING TWO QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
' ' 1 . IS IT COMPATIBLE WITH THE RULES CONTAINED IN THE EEC TREATY CONCERNING THE FREE MOVEMENT OF GOODS , IN PARTICULAR WITH THE PROVISIONS OF ARTICLE 36 THEREOF , TO GIVE APPLICATION TO THE UNIFORM BENELUX LAW ON DRAWINGS OR DESIGNS IN SO FAR AS THE EFFECT OF THAT LAW IS TO GRANT EXCLUSIVE RIGHTS IN A DESIGN , SUCH AS REFERRED TO IN THAT LAW AND HAVING AN OBJECT AND FUNCTION DESCRIBED IN GROUND 11 OF THIS JUDGMENT , TO THE PERSON WHO WAS THE FIRST TO FILE IT WITH THE COMPETENT AUTHORITY , AND WHEN NO PERSON OTHER THAN THE PERSON CLAIMING TO BE THE AUTHOR OF THE DESIGN OR THE PERSON COMMISSIONING OR EMPLOYING THE AUTHOR HAS THE OPPORTUNITY TO CHALLENGE THE RIGHT OF THE PERSON WHO FILED THE DESIGN AND/OR TO DEFEAT AN APPLICATION FOR AN INJUNCTION LODGED BY THAT PERSON BY RELYING ON THE FACT THAT HE IS NOT THE AUTHOR OF THE DESIGN OR THE PERSON COMMISSIONING OR EMPLOYING THE AUTHOR?
2.CAN THE APPLICATION FOR AN INJUNCTION BE DEFEATED IN SO FAR AS IT CONCERNS PRODUCTS WHICH THE DEFENDANT HAS OBTAINED IN A COUNTRY BELONGING TO THE COMMON MARKET OTHER THAN THE COUNTRY ( BELONGING TO THE COMMON MARKET ) FOR WHICH THE INJUNCTION IS SOUGHT IF NO RIGHTS OF THE PERSON WHO FILED THE DESIGN AND WHO SEEKS THE INJUNCTION ARE INFRINGED IN THAT OTHER COUNTRY BY THE MARKETING OF THOSE PRODUCTS?
' '
FIRST QUESTION
13 THE FIRST QUESTION IS ESSENTIALLY