Fabrique des Crayons Koh-I-Noor v Koh-I-Noor Tuskárna L and C Hardtmuth

• Date: 11 July 1959
• Court: District Court (Norway)

Norway, Oslo City Court.

(Fleischer, President; Finn Thune and Wiers-Jenssen JJ.)

Fabrique des Crayons Koh-I-Noor, L. & C. Hardtmuth, s.a.r.l.

and

Koh-I-Noor Tuskarna L. & C. Hardtmuth, Narodni Podnik.

WAR AND NEUTRALITY

War Effects of outbreak of On enemy property and other rights Post-war legislation providing for taking over of enemy and ex-enemy property Whether nationalization measure passed in Czechoslovakia in 1945 was legislation of this nature.

Jurisdiction Territorial limits of Foreign confiscatory legislation Effect on assets situate abroad Situs of trade-marks and trade names Effect of expropriation on trade-marks registered in State of forum and trade name in use in State of forum The law of Norway.

Nationality Acquisition of Effect on nationality of inhabitants of compulsory naturalization measure passed by Occupation authorities German Ordinance of 1939 Effect on nationality of Czech inhabitants.

Recognition of acts of foreign States Legislative acts Effect of confiscatory legislation Partnership business expropriated in Czechoslovakia Position of trade-marks registered in State of forum International registration of trade-marks by Czechoslovak National Enterprise substituted for expropriated firm Use by National Enterprise of trade name of firm in State of forum Paris Convention for the Protection of Industrial Property, 1925, Article 10 Whether French company subsequently formed by former partners entitled to sole right to use trade name in State of forum Effect of delay in seeking remedy The law of Norway.

The Facts.On October 24, 1945, the President of Czechoslovakia issued a Decree of Nationalization of mines and certain industrial firms. In certain industries, the application of the Decree was limited to firms above a stipulated size. Subject to this exception, the criterion was the nature of the business.

Pursuant to the Nationalization Decree, the Czechoslovak Ministry of Industry issued on December 27, 1945, notification of nationalization of the firm of Koh-I-Noor, Fabrique des Crayons L. &. C. Hardtmuth, whose registered offices were in Cesk Budejovice (Budweis). The Ministry declared the firm nationalized by transfer to the State on October 27, 1945. Reference was made to the Nationalization Decree, Section 1, number 18, which applied to wood processing companies with an average of more than 300 employees between January 1, 1938 and January 1, 1940. The notification stated:

In accordance with Section 12 of the Decree, the body of assets of the nationalized companies were to be used to establish national companies. These companies were to be established by the Ministry of Industry, in consultation with the Ministry of Finance and, as regards Slovakia, also with the Industrial Trade and Finance Committees of the Slovakian National Council. Section 13 provided that the national companies should be independent corporations, and the net value of the assets which the State transfers to the national company should constitute the company's capital. The Nationalization Decree also contained a provision regarding the name of the national companies. That provision, which was included in Section 15, ran as follows:

the national company shall include in its name the designation national company, even if it continues the present business of the nationalized company.

Companies which are not national are not permitted to use the designation national company in their name. If a national company corresponds essentially to a nationalized company, it may use the latter's name without such consent as is otherwise necessary under the existing provisions.

If necessary, the person who hitherto has owned the company shall change or add to the name in order to distinguish it clearly from the name of the nationalized company.

As regards the Koh-I-Noor Company, a national company was established by the Ministry of Industry on March 7, 1946. The notification from the Ministry stated:

The national company also took over the obligations of the nationalized company. This was stated under item G of the notification, and the date of transfer was stipulated there as January 1, 1946. Section 8 of the Nationalization Decree provided that as a general rule compensation should be paid for nationalized property. This rule was subject to certain exceptions, including provisions found in Section 7 of the Decree, which provided:

1. Compensation shall not be paid for such nationalized values as constituted at the final termination of the occupation and of the Nazi or Fascist rgime, or at present constitute, part of the property of the following institutions and persons:

(a) The German Empire, the Hungarian Kingdom, public bodies under German or Hungarian law, or associations, organizations, establishments, institutions, groups, businesses or funds established pursuant to or in connection with such law, and all other German or Hungarian corporate persons.

(b) Physical persons of German or Hungarian nationality, except persons who prove that they remained faithful to the Czechoslovak Republic, that they never committed any wrong against the Czech and Slovak people, and that they either took part in the struggle for liberation or suffered under the Nazi or Fascist terror.

(c) Physical persons who have committed an intentional act directed against the sovereignty, independence, republican and democratic form of the State, or against the security or preparedness of the Czechoslovak Republic, or have incited to such act, or who intentionally in any manner whatsoever have assisted the German or Hungarian occupation power, or who during the increasing threat against the Republic (Section 18 of the Decree of the President of the Republic of July 19, 1945, No. 16 in the Compilation of Laws concerning punishment of Nazi traitors and their collaborators and concerning extraordinary people's tribunals) were supporters of the germanization or magyarization of the Czechoslovak State's territory, or took an inimical attitude to the Czechoslovak Republic or the Czech or Slovak people, or who tolerated such an attitude in any person who administered their properties or companies.

At the time of the nationalization, the factory in Budweis belonged to the trading partnership (Offene Handelsgesellschaft) of Koh-I-Noor Bleistiftfabrik L. & C. Hardtmuth, the members of which were Johann Herring-Frankensdorf, Friedrich Herring-Frankensdorf, Mathilde Lamenzan Salins, Anna Hardtmuth, Sen., Maria Princess de Rohan, Anna Hardtmuth, Jr. and Franz Hardtmuth, Jr. The trading partnership had been established by a partnership contract dated March 7, 1897, the signatories to which were the heirs of Franz Edler von Hardtmuth, sole owner of the firm of L. & C. Hardtmuth. He died on July 25, 1896. The contract stipulated:

Section IV of the partnership contract provided that the contract should be binding on the signatories and their heirs for an unlimited period of time and should be irrevocable. No single partner could leave the partnership, and, even if all the partners agreed, the partnership could only be dissolved in the manner laid down by Section X of the contract. This provided:

None of the partners were in Czechoslovakia at the time of the nationalization of the plant there. Those who had been there during the war had left the country in the spring of 1945, before Czechoslovakia was liberated. Neither the partnership as such nor any of the partners, except Maria Princess de Rohan, received any compensation for the nationalization.

Princess de Rohan was considered to have a special status because she had acquired British nationality by marriage before the war. She received an amount in compensation through the British Government, in accordance with the terms of an agreement between the United Kingdom and Czechoslovakia concerning compensation to British citizens whose property had been nationalized. In connection with this Compensation Agreement, the following Note was sent on September 28, 1949, by the Czechoslovak Embassy in London to the Foreign Office1 concerning the scope of the Agreement:

The Czechoslovak authorities were of the opinion that the other partners were German citizens, and that non-payment of compensation was authorized by Section 7 of the Nationalization Decree. In this connection, reference was made to a German Ordinance of April 25, 1939, concerning the acquisition of German citizenship by former Czechoslovak citizens. Section 1 of this Ordinance provided:

The former Czechoslovak citizens of German ethnic origin who as of October 10, 1938, were domiciled in a community in any of the former Czechoslovak areas of Bohemia, Moravia or Silesia, acquire, effective from March 16, 1939, German citizenship unless they have already acquired such citizenship pursuant to Section 1 of the German-Czechoslovak Citizenship and Option Agreement of November 20, 1938 (German Law Gazette, II, p. 895) effective as from October 10, 1938.

The citizenship of Czechoslovak citizens of German ethnic origin was subsequently regulated by the Czechoslovak authorities. By Decree of August 2, 1945, they provided that as a general rule

Czechoslovak citizens of German or Hungarian ethnic origin should lose their Czechoslovak citizenship. Those who had obtained German or Hungarian nationality, pursuant to provisions issued by the foreign occupation Powers, had by virtue of Chapter 1, Section 1, of the Decree, lost their Czechoslovak citizenship from the date on which they obtained the foreign nationality. Other persons of the same origin lost their Czechoslovak citizenship pursuant to Chapter 1, Section 2, of the Decree from the date on which the Decree took effect. Exceptions were made for those able to prove that they had remained loyal to the Czechoslovak Republic and had never intentionally acted against the interests of the Czech or Slovak people, and who in addition proved that they had either taken part in the struggle for recovery of independence or...