USE OF THE TRADEMARK TO PREVENT OR HINDER PARALLEL IMPORTS IS NOT DEALT WITH IN THE CONTRACT?
4 . IS ARTICLE 3 ( B ) ( 1 ) OF REGULATION NO 67/67 APPLICABLE EVEN IF THE PARTIES TO THE CONTRACT DO NOT LEGALLY HAVE THE POWER , BY EXERCISING THE TRADEMARK RIGHTS , TO PREVENT GOODS TO WHICH THE CONTRACT RELATES , AND WHICH ARE PROPERLY MARKED OR PLACED ON THE MARKET , FROM BEING OBTAINED OR SOLD?
5 . IF THE FOURTH QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE , IS IS ALSO NECESSARY IN ORDER FOR ARTICLE 3 ( B ) ( 1 ) TO APPLY THAT THE PARTIES TO THE CONTRACT MUST ACTUALLY USE THE TRADEMARK TO PREVENT OR HINDER GOODS COVERED BY THE CONTRACT FROM BEING OBTAINED?
THE FIRST QUESTION ( THE TERM ' ' UNDERTAKING ' ' )
10 IN ARTICLE 1 ( 1 ) OF REGULATION NO 67/67 ARTICLE 85 ( 1 ) OF THE TREATY IS DECLARED INAPPLICABLE TO AGREEMENTS ' ' TO WHICH ONLY TWO UNDERTAKINGS ARE PARTY ' ' . THERE IS DOUBT ABOUT THE APPLICABILITY OF THAT PROVISION BECAUSE THE AGREEMENT AT ISSUE WAS CONCLUDED BETWEEN HYDROTHERM ON THE ONE HAND AND THREE DIFFERENT PERSONS - MR ANDREOLI , A NATURAL PERSON , AND THE UNDERTAKINGS COMPACT AND OFFICINE SANT ' ANDREA - ON THE OTHER . IT IS AN UNDISPUTED FACT THAT MR ANDREOLI HAS COMPLETE CONTROL OF BOTH THOSE UNDERTAKINGS .
11 IN COMPETITION LAW , THE TERM ' ' UNDERTAKING ' ' MUST BE UNDERSTOOD AS DESIGNATING AN ECONOMIC UNIT FOR THE PURPOSE OF THE SUBJECT-MATTER OF THE AGREEMENT IN QUESTION EVEN IF IN LAW THAT ECONOMIC UNIT CONSISTS OF SEVERAL PERSONS , NATURAL OR LEGAL . THE REQUIREMENT OF ARTICLE 1 ( 1 ) OF REGULATION NO 67/67 IS THEREFORE FULFILLED IF ONE OF THE PARTIES TO THE AGREEMENT IS MADE UP OF UNDERTAKINGS HAVING IDENTICAL INTERESTS AND CONTROLLED BY THE SAME NATURAL PERSON , WHO ALSO PARTICIPATES IN THE AGREEMENT . FOR IN THOSE CIRCUMSTANCES COMPETITION BETWEEN THE PERSONS PARTICIPATING TOGETHER , AS A SINGLE PARTY , IN THE AGREEMENT IN QUESTION IS IMPOSSIBLE .
12 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT REGULATION NO 67/67 MUST BE APPLIED EVEN IF SEVERAL LEGALLY INDEPENDENT UNDERTAKINGS PARTICIPATE IN THE AGREEMENT AS ONE CONTRACTING PARTY PROVIDED THAT THOSE UNDERTAKINGS CONSTITUTE AN ECONOMIC UNIT FOR THE PURPOSES OF THE AGREEMENT .
THE SECOND QUESTION ( TERRITORIAL SCOPE OF THE AGREEMENT )
13 UNDER ARTICLE 1 ( 1 ) ( A ) OF REGULATION NO 67/67 , BLOCK EXEMPTION IS APPLICABLE TO AGREEMENTS IN WHICH ONE PARTY AGREES WITH THE OTHER ' ' TO SUPPLY ONLY TO THAT OTHER CERTAIN GOODS FOR RESALE WITHIN A DEFINED AREA OF THE COMMON MARKET ' ' . THE AGREEMENT IN QUESTION DEFINES THE LICENSED TERRITORY AS ' ' WESTERN EUROPE ' ' EXCLUDING CERTAIN STATES , WHICH , IN ONE CASE , ARE ITALY , GREECE AND TURKEY AND