UNDER LICENCE . RESTRICTIONS ON THE FIELD OF USE OF THE PRODUCTS MAY BE ACCEPTABLE BUT ONLY IF THEY RELATE TO DIFFERENT PRODUCTS BELONGING TO DIFFERENT MARKETS . THE DESIGN AND QUALITY OF A PRODUCT ARE THE SOLE CONCERN OF THE LICENSEE .
43 ACCORDING TO THE COMMISSION , STANDARDS OF QUALITY AND SAFETY MAY FALL OUTSIDE THE SCOPE OF ARTICLE 85 ( 1 ) ONLY IF THEY RELATE TO A PRODUCT ACTUALLY COVERED BY THE PATENT , IF THEY ARE INTENDED TO ENSURE NO MORE THAN THAT THE TECHNICAL INSTRUCTIONS AS DESCRIBED IN THE PATENT ARE IN FACT CARRIED OUT AND IF THEY ARE AGREED UPON IN ADVANCE AND ON THE BASIS OF OBJECTIVELY VERIFIABLE CRITERIA .
44 AS REGARDS WINDSURFING INTERNATIONAL ' S ASSERTION THAT APPROVALS ARE NECESSARY IN ORDER TO PREVENT SLAVISH IMITATION , THE COMMISSION REMARKS FIRST OF ALL THAT PROTECTION AGAINST SLAVISH IMITATION DOES NOT FORM PART OF THE SPECIFIC SUBJECT-MATTER OF ANY INDUSTRIAL PROPERTY RIGHT BUT IS A FORM OF PROTECTION DEVELOPED BY THE COURTS IN MANY COUNTRIES AGAINST THE PASSING OFF OF PRODUCTS BY COMPETITORS . IF THE LICENSOR HIMSELF , BY MEANS OF AN APPROPRIATE CLAUSE IN AN AGREEMENT , SETS HIMSELF UP AS THE SOLE ARBITER , IN PLACE OF THE COURTS , OF ANY DOUBTFUL CASES THAT MAY ARISE , THERE IS A DANGER THAT HE WILL USE THAT DISCRETION SOLELY IN HIS OWN FAVOUR AND THUS RESTRICT HIS LICENSEES IN THEIR COMPETITIVE FREEDOM IN AREAS WHICH DO NOT COME WITHIN THE SCOPE OF UNFAIR COMPETITION .
45 IT IS NECESSARY TO DETERMINE WHETHER QUALITY CONTROLS ON THE SAILBOARDS ARE COVERED BY THE SPECIFIC SUBJECT-MATTER OF THE PATENT . AS THE COMMISSION RIGHTLY POINTS OUT , SUCH CONTROLS DO NOT COME WITHIN THE SPECIFIC SUBJECT-MATTER OF THE PATENT UNLESS THEY RELATE TO A PRODUCT COVERED BY THE PATENT SINCE THEIR SOLE JUSTIFICATION IS THAT THEY ENSURE ' THAT THE TECHNICAL INSTRUCTIONS AS DESCRIBED IN THE PATENT AND USED BY THE LICENSEE MAY BE CARRIED INTO EFFECT ' . IN THIS CASE , HOWEVER , IT HAS BEEN ESTABLISHED THAT IT MAY REASONABLY BE CONSIDERED THAT THE GERMAN PATENT DOES NOT COVER THE BOARD .
46 HOWEVER , EVEN ON THE ASSUMPTION THAT THE GERMAN PATENT COVERS THE COMPLETE SAILBOARD , AND THEREFORE INCLUDES THE BOARD , IT CANNOT BE ACCEPTED WITHOUT MORE THAT CONTROLS SUCH AS THOSE PROVIDED FOR IN THE LICENSING AGREEMENTS WERE COMPATIBLE WITH ARTICLE 85 . SUCH CONTROLS MUST BE EFFECTED ACCORDING TO QUALITY AND SAFETY CRITERIA AGREED UPON IN ADVANCE AND ON THE BASIS OF OBJECTIVELY VERIFIABLE CRITERIA . IF IT WERE OTHERWISE , THE DISCRETIONARY NATURE OF THOSE CONTROLS WOULD IN EFFECT ENABLE A LICENSOR TO IMPOSE HIS OWN SELECTION OF MODELS UPON THE LICENSEES , WHICH WOULD BE CONTRARY TO ARTICLE 85 .
47 WINDSURFING INTERNATIONAL HAS BEEN UNABLE TO SHOW THAT THERE WERE ANY OBJECTIVE CRITERIA LAID DOWN IN ADVANCE BECAUSE NO INDICATION OF THE TECHNICAL VERIFICATIONS TO BE CARRIED OUT IS CONTAINED