TO THE AGREEMENT AND ALSO PROVIDED IT WITH EVIDENCE THAT IT HAD INFORMED AT LEAST THE LAST DEALER APPROACHED BY SEGERS , NAMELY PLANTA , THAT IT NO LONGER HAD ANY OBJECTIONS TO THE MARKETING OF TOLTECS FINE CUT TOBACCO . IN THE ABSENCE OF ANY INDICATION TO THAT EFFECT , THE AGREEMENT MUST BE REGARDED AS BEING STILL IN FORCE .
21 AS REGARDS THE SECOND POINT , THE COMMISSION APPEARS TO TAKE THE VIEW THAT THE REFERENCE TO ' CURLY CUT TOBACCO ' IN THE AGREEMENT WAS CONSCIOUSLY INTENDED BY BAT , WHICH WAS AWARE OF THE FACT THAT SEGERS DID NOT MANUFACTURE THAT PRODUCT , ITS AIM BEING TO GAIN COMPLETE CONTROL OVER IMPORTS OF FINE CUT TOBACCO UNDER THE TOLTECS TRADE MARK .
22 THE COMMISSION ' S VIEW WITH REGARD TO THE FIRST POINT APPEARS JUSTIFIED . A DECLARATION OF INTENT BY BAT AT THE COMMISSION HEARING WAS NOT SUFFICIENT TO TERMINATE AN AGREEMENT WITH ANOTHER PARTY . THE AGREEMENT OF 16 JANUARY 1975 MUST THEREFORE BE PRESUMED TO HAVE BEEN IN EXISTENCE AT THE TIME OF THE COMMISSION ' S DECISION .
23 AS TO THE QUESTION WHETHER THE DISPUTED AGREEMENT COVERED FINE CUT TOBACCO , IT IS SUFFICIENT TO NOTE THAT THE AGREEMENT IS OBJECTIVELY AMBIGUOUS AND OPEN TO CONTRADICTORY INTERPRETATIONS . ALTHOUGH IT IS TRUE THAT THE AMBIGUITY IS ATTRIBUTABLE IN THE FIRST PLACE TO SEGERS , WHO SUGGESTED THE RELEVANT WORDING HIMSELF , THE FACT REMAINS THAT BAT TOOK ADVANTAGE OF THAT AMBIGUITY BECAUSE IT SERVED ITS OWN PURPOSE , WHICH WAS TO PREVENT SEGERS FROM SELLING THE ONLY KIND OF TOBACCO WHICH HIS UNDERTAKING ACTUALLY PRODUCED .
24 BAT CANNOT THEREFORE CRITICIZE THE COMMISSION FOR ATTRIBUTING TO THE AGREEMENT THE MEANING WHICH BAT HAD ITSELF GIVEN TO IT BY VIRTUE OF ITS CONDUCT .
25 THAT SUBMISSION MUST THEREFORE BE REJECTED .
THE SUBMISSIONS RELATING TO THE COMMISSION ' S ALLEGED INCORRECT LEGAL CLASSIFICATION OF THE DISPUTED AGREEMENT
26 THE APPLICANT CONSIDERS THAT THE COMMISSION ' S LEGAL APPRAISAL OF THE AGREEMENT OF 16 JANUARY 1975 IS INCORRECT AND INCONSISTENT WITH THE PRESENT STATE OF DEVELOPMENT OF COMMUNITY LAW . ACCORDING TO THE APPLICANT , THE AGREEMENT IS A ' DELIMITATION ' AGREEMENT ON THE USE OF DIFFERENT TRADE MARKS , CONTAINING A SO-CALLED ' NO-CHALLENGE ' CLAUSE , INTENDED TO CONSOLIDATE THE POSITION OF THE DORCET MARK EVEN AFTER IT HAD CEASED TO BE LEGALLY PROTECTED . IT ARGUES THAT THE VALIDITY OF SUCH AGREEMENTS IS A MATTER GOVERNED BY NATIONAL LAW , AND ADDS THAT RECOURSE TO SUCH CLAUSES IS COMMON PRACTICE AND THAT THEY ARE REGARDED AS PERFECTLY LEGAL UNDER GERMAN LAW . HENCE IT CHALLENGES THE COMMISSION ' S RIGHT TO ASSESS THE RISK OF CONFUSION BETWEEN TWO TRADE MARKS . MORE SPECIFICALLY , IT CRITICIZES THE COMMISSION FOR PURPORTING TO LAY DOWN A CRITERION OF APPRAISAL , IN THE NAME OF COMMUNITY LAW , WHICH DIFFERS FROM THAT APPLIED BY THE NATIONAL LEGISLATION , IN