HAVE HAD THE RIGHT UNDER GERMAN LAW TO APPLY TO HAVE THE DORCET MARK REMOVED FROM THE REGISTER SINCE IT HAD NOT BEEN USED FOR FIVE YEARS . SEGERS DID NOT AVAIL HIMSELF OF THAT RIGHT .
11 ON THE FOLLOWING DAY , 16 JANUARY 1975 , SEGERS SIGNED THE AGREEMENT WITH BAT DESCRIBED ABOVE . IT IS CLEAR FROM THE COMMISSION DECISION AND FROM THE OTHER DOCUMENTS BEFORE THE COURT THAT THE TERMS OF THE AGREEMENT WERE FOR THE MOST PART PROPOSED BY SEGERS AND ACCEPTED WITHOUT AMENDMENT BY BAT . IT IS ALSO APPARENT FROM THE DECISION AND FROM OTHER DOCUMENTS BEFORE THE COURT THAT THE AGREEMENT CONTAINS A DRAFTING ERROR , SINCE THE TOBACCO FOR WHICH SEGERS RESERVED THE RIGHT TO USE HIS TRADE-MARK WAS DESCRIBED BOTH AS ' CURLY CUT TOBACCO ' AND AS ' SHAG ' , AND , IN NETHERLANDS USAGE , THESE TERMS REFER RESPECTIVELY TO COARSE CUT AND TO FINE CUT TOBACCO .
12 SEGERS STATES THAT HE DID NOT NOTICE THAT MISTAKE UNTIL AFTER THE AGREEMENT HAD BEEN SIGNED . IT SHOULD BE NOTED THAT HE DID NOT EXERCISE HIS RIGHT TO APPLY TO A GERMAN COURT TO HAVE THE MISTAKE AND ITS LEGAL CONSEQUENCES RECTIFIED . IN THAT CONNECTION , THE COMMISSION EXPLAINS , IN THE STATEMENT OF REASONS FOR ITS DECISION , THAT SEGERS WAS NOT IN A POSITION TO RUN THE RISK ' OF BECOMING INVOLVED IN COSTLY LITIGATION - WHICH HE COULD NOT AFFORD - WITH A FIRM IN A STRONG FINANCIAL POSITION LIKE BAT ' ( THIRD INDENT OF SUBPARAGRAPH II ( 3)(A)(A )).
13 IT APPEARS FROM DOCUMENTS BEFORE THE COURT THAT AFTER THE AGREEMENT WAS CONCLUDED SEGERS ONCE AGAIN BEGAN TO MARKET HIS PRODUCTS IN THE FEDERAL REPUBLIC OF GERMANY THROUGH AN EXCLUSIVE DISTRIBUTOR , MULLER-BRODERS . BAT GAVE MULLER-BRODERS PERMISSION TO USE THE NAME TOLTECS TO MARKET FINE CUT PRODUCTS .
14 ON 16 AUGUST 1978 SEGERS INFORMED BAT OF HIS INTENTION TO USE A DIFFERENT IMPORTER AND ASKED IT TO STATE IN WRITING THAT THE NEW IMPORTER WOULD BE ALLOWED TO USE THE TOLTECS TRADE MARK IN THE SAME WAY AS MULLER-BRODERS . BAT REPLIED ON 23 AUGUST 1978 THAT UNDER THE TERMS OF THE AGREEMENT , SEGERS WAS ENTITLED TO SELL ONLY CURLY CUT TOBACCO ; THAT RIGHT WAS FREELY TRANSFERABLE TO ANOTHER IMPORTER . BUT THE RIGHT TO USE THE TOLTECS TRADE MARK FOR FINE CUT TOBACCO HAD BEEN GRANTED BY BAT TO MULLER-BRODERS AND AS FAR AS BAT WAS CONCERNED THAT UNDERTAKING REMAINED THE IMPORTER OF THE PRODUCT .
15 MULLER-BRODERS SUBSEQUENTLY CEASED TRADING AND ITS BUSINESS WAS TAKEN OVER BY PETER GRASSMANN GMBH . FOR HIS PART , SEGERS BEGAN NEGOTIATIONS WITH ANOTHER POTENTIAL IMPORTER , PLANTA . HOWEVER , THOSE NEGOTIATIONS PRODUCED NO POSITIVE RESULT BECAUSE OF THE UNCERTAINTIES SURROUNDING THE USE OF THE TRADE MARK . AFTER WORKING WITH GRASSMANN FOR A SHORT PERIOD , SEGERS ONCE AGAIN CONTACTED PLANTA . SEGERS THEN REQUESTED BAT TO