31.12. 82 Official Journal of the European Communities No L 379/19 COMMISSION DECISION of 15 December 1982 relatmg to a proceeding under Article 85 of the EEC Treaty (IV/C-30.128 — Toltecs/Dorcet) {Oaly the Dutch and German texts are authentic) (82/897/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation No 17 of 6 Pebruary 1962: first Regulation implementing Articles 85 and 86 of the Treaty (*), as last amended by the Act of Accession of Greece, and in particular Articles 3 and 15 thereof, Having regard to the complaint filed by Mr Antonius Segers (hereinafter referred w0 as ‘Mr Segers’) pursuant to Article 3 of Regulation No 17 on 12 June 1980, Having given the undertakings concerned the oppor- tunity to make known their views on the objections raised by the Commission in accordance with Article 19 (1) of Regulation No 17 and with Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19 (1) and (2) of Council Regulation No 17 (¥, After consultation with the Advisory Committee on Restrictive Practices and Dominant Positions, Whereas: 1. The facts 1. The family firm, P.L. Segers & Zonen, was established in the Netherlands in 1896 for the purpose of processing and selling coffee, tea and tobacco. In 1969, the firm began manufacturing tobacco products, partly for third parties under their own brands and partly for direct sale through a new firm set up that same year, Tabaksindustrie Toltecs. Both firms have their headquarters in Roosendaal and are at present owned and run by Mr Segers. Mr Segers used the trade mark Toltecs Special for the first time in 1969 and had it registered internationally for the Federal Republic of Germany and for other countries. On 31 January 1973 he applied to have the trade mark Toltecs Special (device and word as reproduced below) registered internationally in Class 34, for raw tobacco and tobacco products, as No () OJ No 13, 21. 2. 1962, p. 204/62. (*) OJ No 127, 20. 8. 1963, p. 2268/63. 395536 for, among others, Benelux, France, the Federal Republic of Germany and Italy. ' In accordance with the agreement entered into by Mr Segers and BAT Cigaretten-Fabriken GmbH on 16 January 1975 the latter, on 21 January 1975, withdrew its opposition in the Federal Republic of Germany, so that registration could then be completed there too. The trade mark Toltecs Special (hereinafter referred to as “Toltecs’) is an expression derived from the name of an Indian tribe which lived in Mexico, the Toltecs. Over the last five years it has been used only in the Netherlands and the Federal Republic of Germany. As far as tobacco products are concerned, up to now Mr Segers has produced only fine cut — mild, medium and strong tobacco for which, in recent years, there has been a steady increase in demand. The question as to whether the firm will also manu- facture pipe tobacco in the future depends on how * the market develops. Since 1978 Mr Segers has been selling his fine cut almost exclusively in the Netherlands, and his sales doubled in 1981; they are somewhat below 1% of total fine cut sales in the Netherlands, which amounted to 14 353 tonnes in 1981.° Smoking tobacco is made up of fine cut (shag) and curly cut; the former is used for cigarettes hand- rolled by the consumer, the latter for pipe smoking only. The main manufacturers of smoking tobacco in the Netherlands are Douwe Egberts BV, Van Nelle Lassie BV, Niemeyer BV and Gruno-Van Rossem BV. The Netherlands is one of the main exporters of smoking tobacco worldwide. 2. BAT Cigaretten-Fabriken GmbH (hereinafter referred to as ‘BAT’), Hamburg, is a subsidiary of one of the world’s biggest cigarette producers, British American Tobacco Company, UK-London (turnover in 1980: some £ 7 600 million); its business consists in the manufacture and distribution of tobacco products. On 18 December 1968 it applied to enter the name Dorcet on the German trade mark register: on 15 January 1970 this was registered in Class 34, for raw tobacco, tobacco products and cigarette paper, as No 865 058. The Dorcet trade mark has never been used. In 1981 BAT once again maintained its position as Germany’s second-largest cigarette manufacturer.