83/400/EEC: Commission Decision of 11 July 1983 relating to a proceeding under Article 85 of the EEC Treaty (IV/29.395 - Windsurfing International) (Only the German and English texts are authentic)

• Articles: 4

Article 1

1 . The following provisions in the patent licensing agreements which existed until 1981/82 between WSI and the licensees Ostermann , Shark , Akutec , S.A.N . , Klepper and Marker constituted an infringement of Article 85 ( 1 ) of the EEC Treaty :

1 . the obligation on the licensees to exploit the licensed patents only for the manufacture of sailboards using boards which had been given WSI's prior approval ;

2 . the obligation on the licensees not to supply rigs manufactured under German patent No 19 14 602.4-22 separately and without the boards approved by WSI ;

3 . the obligation on the licensees to pay royalties for rigs manufactured under German patent No 19 14 602.4-22 only on the basis of the net selling price of a complete sailboard ;

4 . the obligation on the licensees to affix to the boards in their range a notice stating that such boards are " licensed by Hoyle Schweitzer " or " licensed by WSI " ;

5 . the obligation on the licensees to acknowledge the word marks " Windsurfer " and " Windsurfing " as well as a design mark showing the abstract shape of a sail ( so-called " logo " ) as valid trade marks .

2 . The provision in the agreements between WSI and Akutec , S.A.N . , Klepper and Marker for termination of the licensing agreements should the licensees start production in a territory not covered by a patent also constituted an infringement of Article 85 ( 1 ) of the EEC Treaty .

3 . Furthermore , the obligation on the licensees , stipulated in the agreements with Ostermann and Shark , not to challenge the licensed patents constituted an infringement of Article 85 ( 1 ) of the EEC Treaty .

Article 2

1 . The prohibition contained in the distribution agreements as listed below under ( a ) to ( d ) preventing each sole distributor from selling outside his allotted territory , or the latters' obligation to ask the manufacturer for approval of any such sales , constituted infringements of Article 85 ( 1 ) of the EEC Treaty :

( a ) agreements between Akutec on the one hand and the undertakings Horwa , Taselaar , Ertisport and RaFly on the other ;

( b ) agreements between Ostermann on the one hand and the undertakings Thijs and d'leteren on the other ;

( c ) agreements between Klepper on the one hand and the undertakings Telstar , Intersurf , Media Loisirs and Citabel Sports on the other ;

( d ) the agreement between Shark on the one hand and Renka Sport on the other .

2 . The prohibition on retailers according to the agreements as listed below under ( a ) to ( c ) to supply contract products to other dealers in other Member States also constituted an infringement of Article 85 ( 1 ) of the EEC Treaty :

( a ) the " dealer passes " distributed by Akutec to retailers ;

( b ) the " partnership agreements " concluded between Ostermann and retailers ;

( c ) the " partnership agreements " concluded between WSC and retailers .

Article 3

The following fines are hereby imposed :

1 . on the undertaking WSI a total fine of 50 000 ( fifty thousand ) ECU or DM 113 793 in respect of the ban on the separate supply of rigs ( Article 1 ( 1 ) ( 2 ) ) , the obligation to pay royalties on the basis of the net selling price of a complete sailboard ( Article 1 ( 1 ) ( 3 ) ) , the obligation to affix the licence notice on the board ( Article 1 ( 1 ) ( 4 ) ) , the factual ban on production in territories not covered by a patent ( Article 1 ( 2 ) ) and the stipulation of a no-challenge clause ( Article 1 ( 3 ) ) ;

2 . in respect of the export bans imposed on sole distributors in other Member States and the bans imposed on dealers in Germany from supplying other dealers :

1 . a fine of 15 000 ( fifteen thousand ) ECU or DM 34 138 on the undertaking Ostermann ;

2 . a fine of 10 000 ( ten thousand ) ECU or DM 22 759 on the undertaking Akutec ;

3 . a fine of 10 000 ( ten thousand ) ECU or DM 22 759 on the undertaking Klepper ;

4 . a fine of 5 000 ( five thousand ) ECU or DM 11 379 on the undertaking Shark ;

5 . a fine of 5 000 ( five thousand ) ECU or DM 11 379 on the undertaking WSC .

The abovementioned amounts shall be paid within three months of notification of this Decision to account No 260/00/64910 of the Commission of the European Communities with Sal . Oppenheimer , Cologne .

Article 4

This Decision is addressed to :

1 . Windsurfing International Inc .

( a ) 1955 West 190th Street , Torrance ,

California 90509 ,

USA ;

( b ) for the attention of

Herrn Patentanwalt Axel Hansmann

c / o Licht , Schmidt , Hansmann and Hermann ,

Albert-Rosshaupter-Str . 65 ,

D-8000 Muenchen 70

2 . Windglider Fred Ostermann GmbH ,

Comotorstr . 12 ,

D-6636 Ueberherrn-Altforweiler ;

3 . Shark Wassersportgeraete GmbH ,

Auf den Hoehen ,

D-2830 Bassum ;

4 . Akutec Angewandte Kunststofftechnik GmbH ,

Staeblistr . 6 ,

D-8000 Muenchen 71 ;

5 . S.A.N . Warenvertriebsgesellschaft mbH ,

Roetelstr . 30 ,

D-7107 Neckarsulm ;

6 . Klepper BeteiligungsGmbH and Co . Bootsbau KG ,

Klepperstr . 18 ,

D-8200 Rosenheim ;

7 . Marker Surf GmbH ,

Hauptstr . 51 - 53 ,

D-8100 Garmisch-Partenkirchen ;

8 . Windsurfing Central GmbH ,

Hainburgstr . 47 ,

D-6054 Rodgau .

This Decision is enforceable in accordance with Article 192 of the EEC Treaty .

Done at Brussels , 11 July 1983 .

For the Commission

Frans ANDRIESSEN

Member of the Commission