Lightning Fasteners Ltd v Germany
| Date | 05 Noviembre 1959 |
| Court | Obsolete Court (Germany) |
(Wickstrm, President; Euler, Bennett.)
War In general Enforcement of laws of war Reprisals Retaliatory legislation Presumption of proportionality.
War In general Effects of treaties of peace Analogous instruments Convention on the Settlement of Matters Arising out of the War and Occupation, 19521954 Meaning of discriminatory treatment.
War Effects of outbreak of On enemy subjects with regard to property and other rights Patent rights Effect of German legislation during Second World War Whether confiscatory of rights of patent owner Retaliatory legislation Presumption of proportionality Appropriation of royalties by German Government Whether constituting discriminatory treatment under Convention on Settlement of Matters Arising out of the War and Occupation, 19521954.
The Facts.This was an application under Article 1, paragraphs 1 and 4, of Chapter Ten of the Convention on the Settlement of Matters Arising out of the War and Occupation, 19521954,1 by a British company for restoration of patent rights adversely affected by German legislation during the Second World War.
The statement of facts by the Commission was as follows: By decision of May 30, 1958, the Bundesamt fr die Prfung auslndischer Rckgabe- und Wiederherstellungsansprche [Federal Restitution Office] rejected the complainant's applications for restoration of its rights allegedly impaired by an Order of the President of the Reichspatentamt [Reich Patent Office] of November 25, 1940, and for payment of the royalties collected by the Reich.
On June 24, 1958, the complainant lodged an appeal with the Arbitral Commission from the above decision which had been served upon it on May 31, 1958.
After an exchange of pleadings, the Arbitral Commission heard the parties at the oral hearing held on February 23, 1959.
In its formal motions as defined and redrafted before the Arbitral Commission the complainant requested:
that the decision of the Bundesamt of May 30, 1958, be set aside and that it be decided as follows:
(1) The rights of the firm Lightning Fasteners under patents 140363, 147567, 149732, 153896, 147301 and 147570 be fully restored to the extent to which they existed on November 22 [sic], 1940, prior to the entry into force of the Order of the President of the Reichspatentamt dated November 23 [sic], 1940; and the Order of the President of the Reichspatentamt in respect of these patents, dated November 23 [sic.], 1940, be cancelled with retroactive effect as a discriminatory measure taken against the complainant; alternatively, the Order of the President of the Reichspatentamt of
November 23 [sic], 1940, be declared to be discriminatory as against the complainant and, consequently, of no legal effect(2) The rights of the firm Lighting Fasteners Ltd. under the agreement of July 1, 1927, concluded with the firm Bickford & Co. A.G. be restored to the extent to which they suffered discriminatory treatment as a result of the Order of the President of the Reichspatentamt dated November 23 [sic], 1940.
(3) The Federal Republic be ordered to restitute to the firm Lightning Fasteners Ltd. the amount of 401,687.74 Reichs Mark received in consideration of the exploitation of the patent, to be converted into Deutsche Mark at the rate of 10:1; alternatively, to pay this amount to the firm.
The defendant requested that the appeal be rejected.
Held: that the decision of the Bundesamt [Federal Restitution Office] rejecting the complainant's applications for restoration of his rights allegedly impaired by the Order of the President of the Reichspatentamt [Reich Patent Office] and for payment of royalties collected by the Reich must be set aside. The Reich appropriated the royalties which, during the war, had been accruing to the benefit of the complainant in his capacity as patent owner. Such appropriation purported to annul the complainant's claim to collect such royalties. The claim so annulled should be restored under Article 1 of Chapter Ten of the Convention on the Settlement of Matters Arising out of the War and Occupation of 19521954. The Commission was without jurisdiction in relation to other requests of the complainant.
The Commission said: In exercise of the powers conferred upon him by 26 of the Ordinance on the Treatment of Enemy Properties of January 15, 1940, and by way of reprisal against the British Patents, Designs, Copyrights and Trade Marks (Emergency) Act of September 21, 1939, the Reichsminister der Justiz [Reich Minister of Justice] issued an Ordinance dated February 26, 1940, authorizing the President of the Reichspatentamt to grant, in order to safeguard the public interest, a right of...
Um weiterzulesen
FORDERN SIE IHR PROBEABO AN