.
THE FINE
43 BY ARTICLE 3 OF THE DECISION A FINE OF 50 000 ECU WAS IMPOSED ON BAT ON ACCOUNT OF THE SO-CALLED ' NO-CHALLENGE ' CLAUSE CONTAINED IN THE DISPUTED AGREEMENT . THE REASONS FOR THE IMPOSITION OF THAT FINE ARE SET OUT AS FOLLOWS IN THE SECOND AND THIRD PARAGRAPHS OF PART IV ( 2 ) ( B ) OF THE PREAMBLE TO THE DECISION :
' WHEN THE USER REQUIREMENT WAS INTRODUCED IN THE FEDERAL REPUBLIC OF GERMANY BY THE LAW OF 4 DECEMBER 1967 IT WAS PLAIN TO BAT THAT THE AGREEMENT , WHICH PROHIBITED MR SEGERS FROM RELYING ON HIS ACQUIRED RIGHTS EVEN IF THE DORCET MARK IS UNUSED FOR MORE THAN FIVE YEARS , WAS CONTRARY TO THE MEANING AND PURPOSE OF THE STATUTORY REQUIREMENT , WHICH WAS TO REMOVE UNUSED MARKS FROM THE REGISTER AND FACILITATE ENTRY BY NEW APPLICANTS .
IN THIS CONNECTION , IT IS PARTICULARLY SERIOUS THAT THE DORCET MARK WAS REGISTERED ON 15 JANUARY 1970 AND THAT BAT SIGNED THE AGREEMENT ON 16 JANUARY 1975 , ONE DAY AFTER EXPIRY OF THE PERIOD OF PROTECTION ACCORDED BY GERMAN TRADE MARK LAW . BAT WAS AWARE THAT BY THE AGREEMENT IT HAS SECURED A LEGAL POSITION WHICH BY THEN COULD NOT BE DEFENDED IN LAW . '
44 IN THE SIXTH PARAGRAPH OF PART IV ( 2 ) ( B ) OF THE PREAMBLE THE COMMISSION STATES ITS REASONS FOR NOT IMPOSING A FINE UPON SEGERS ALTHOUGH THE LATTER WAS A PARTY TO THE AGREEMENT WHICH HAD BEEN FOUND TO BE INCOMPATIBLE WITH ARTICLE 85 . ITS DIFFERENT TREATMENT OF SEGERS IS EXPLAINED AS FOLLOWS :
' HOWEVER , THE COMMISSION IS NOT IMPOSING A FINE ON MR SEGERS DESPITE THE FACT THAT HE HAS ALSO COMMITTED AN INFRINGEMENT OF ARTICLE 85 ( 1 ). MR SEGERS IS THE OWNER OF A SMALL DUTCH FIRM , WHO AT THE BEGINNING OF HIS DISPUTE WITH BAT WAS NOT ADEQUATELY INFORMED ABOUT THE GERMAN LEGAL POSITION AND COMMUNITY LAW . MR SEGERS ' S LACK OF LEGAL EXPERIENCE IS ALSO CLEAR FROM THE COURSE HIS DISPUTE WITH BAT TOOK , SINCE HE APPARENTLY LET AN ERRONEOUSLY WORDED AGREEMENT BE USED AGAINST HIM . '
45 THE APPLICANT ' S COMPLAINT ON THAT POINT IS ESSENTIALLY THAT THE COMMISSION TREATED TWO PARTIES TO THE SAME AGREEMENT UNEQUALLY . IT TAKES THE VIEW THAT THE AGREEMENT WAS CONCLUDED ON THE SAME TERMS BY THE TWO PARTIES AND THAT THEY MUST THEREFORE BEAR EQUAL RESPONSIBILITY FOR IT . IT ADDS THAT THE FACT THAT THE AGREEMENT IN QUESTION WAS CONCLUDED ONE DAY AFTER THE EXPIRY OF THE LEGAL PROTECTION PERIOD FOR THE DORMANT DORCET TRADE MARK , WHICH THE COMMISSION REGARDS AS AN AGGRAVATING CIRCUMSTANCE , WAS WHOLLY FORTUITOUS AND WAS DUE TO SEGERS ' S SLOWNESS IN DEALING WITH CORRESPONDENCE RELATING TO THE CONCLUSION OF THE AGREEMENT . FINALLY , BAT DENIES THAT IT WAS IN ANY WAY AT FAULT , SINCE