THAT THE GERMAN CABLE DUCTS WERE A PRECISE IMITATION OF THE SWEDISH CABLE DUCTS AND SOUGHT AN ORDER FROM HIM RESTRAINING THE DEFENDANT FROM MARKETING THE GERMAN CABLE DUCTS OR CAUSING THEM TO BE MARKETED IN THE NETHERLANDS .
4 THE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK GRANTED THE APPLICATION WHEREUPON THE SECOND UNDERTAKING APPEALED TO THE GERECHTSHOF , THE HAGUE . ACCORDING TO THE JUDGMENT MAKING THE REFERENCE FOR A PRELIMINARY RULING , THAT COURT ARRIVED AT THE PROVISIONAL VIEW THAT THE GERMAN MANUFACTURER COULD HAVE DESIGNED A CABLE-DUCT SYSTEM DIFFERENT FROM THE SWEDISH SYSTEM WITHOUT IMPAIRING THE QUALITY OF ITS PRODUCT ECONOMICALLY OR TECHNICALLY AND BY NOT DOING SO HAD CAUSED THE TWO PRODUCTS TO BE CONFUSED . THE GERECHTSHOF ACCORDINGLY CONSIDERS THAT THE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK RIGHTLY DECIDED THAT UNDER NETHERLANDS LAW THE GERMAN PRODUCT IS A PRECISE IMITATION OF THE SWEDISH CABLE DUCTS . SINCE THE APPELLANT CLAIMED THAT THE CABLE DUCTS WHICH IT SOLD WERE LAWFULLY MARKETED IN ANOTHER MEMBER STATE AND THAT THE RESPONDENT ' S ACTION WAS THEREFORE CONTRARY TO ARTICLES 30 TO 36 OF THE EEC TREATY , THE GERECHTSHOF DECIDED TO ASK THE COURT THE FOLLOWING QUESTION :
' ' ASSUMING THAT :
( A ) A TRADER , A , MARKETS PRODUCTS IN THE NETHERLANDS WHICH ARE NO LONGER COVERED BY ANY PATENT AND WHICH FOR NO COMPELLING REASON ARE PRACTICALLY IDENTICAL WITH PRODUCTS WHICH HAVE BEEN MARKETED FOR A CONSIDERABLE PERIOD OF TIME IN THE NETHERLANDS BY ANOTHER TRADER , B , AND WHICH ARE DIFFERENT FROM SIMILAR KINDS OF ARTICLES , AND IN SO DOING TRADER A NEEDLESSLY CAUSES CONFUSION :
( B)UNDER NETHERLANDS LAW TRADER A IS THEREBY COMPETING UNFAIRLY WITH TRADER B AND ACTING UNLAWFULLY ;
( C)NETHERLANDS LAW GIVES TRADER B THE RIGHT TO OBTAIN AN INJUNCTION ON THAT GROUND RESTRAINING TRADER A FROM CONTINUING TO MARKET THE PRODUCTS IN THE NETHERLANDS ;
( D)THE PRODUCTS OF TRADER B ARE MANUFACTURED IN SWEDEN AND THOSE OF TRADER A IN THE FEDERAL REPUBLIC OF GERMANY ;
( E)TRADER A IMPORTS HIS PRODUCTS FROM THE FEDERAL REPUBLIC OF GERMANY IN WHICH THOSE PRODUCTS ARE LAWFULLY PUT ON THE MARKET BY SOMEONE OTHER THAN TRADER B , THE SWEDISH MANUFACTURER , SOMEONE WHO IS ASSOCIATED WITH ONE OF THEM OR BY SOMEONE WHO IS AUTHORIZED TO DO SO BY ONE OF THEM ,
DO THE RULES CONTAINED IN THE EEC TREATY ON THE FREE MOVEMENT OF GOODS , NOTWITHSTANDING THE PROVISIONS OF ARTICLE 36 THEREOF , THEN PREVENT TRADER B FROM OBTAINING SUCH AN INJUNCTION AGAINST TRADER A?
' '
5 THE CASE-FILE SHOWS THAT , JUST LIKE PROTECTION AGAINST PRECISE IMITATION IN THE LAW OF MOST OTHER MEMBER STATES , THE RULE OF NETHERLANDS LAW TO WHICH THE QUESTION REFERS HAS BEEN DEVELOPED CHIEFLY BY THE COURTS . AS THE COMMISSION HAS POINTED OUT , NO EFFORT HAS BEEN MADE HITHERTO AT COMMUNITY LEVEL TO HARMONIZE NATIONAL RULES AGAINST PRECISE IMITATION . THEREFORE AN EXAMINATION OF THE QUESTION