News & Publications

The Supreme Court’s recent decision in Mission Product Holdings, Inc., v. Tempnology, LLC 1 clarifies that a debtor-licensor’s rejection of a trademark license under § 365(a) 2 of the Bankruptcy Code is treated as a breach, and not as a rescission, of that license under § 365(g). 3 The Court held that if a licensee’s right to use the trademark would survive a breach outside of bankruptcy, that same right survives a rejection in bankruptcy. The clear import of Mission Product is that, absent [...]

This week, in Mission Product Holdings Inc. v. Tempnology, LLC, the Supreme Court settled a dispute between the Circuit Courts regarding how trademark licenses are treated when a licensor declares bankruptcy.  Under the Bankruptcy Code, debtors may reject executory contracts—or contracts that have not been fully performed—upon declaring bankruptcy.  Although the Bankruptcy Code explicitly dictates that when a licensor rejects a patent license, the licensee may continue to use the patent so long as it pays [...]

On March 27, 2019, the United States Bankruptcy Court for the Northern District of West Virginia issued an opinion1 holding that an over-secured creditor could not recover a portion of the creditor's attorney's fees incurred in connection with the borrower's bankruptcy proceeding despite provisions in the loan agreement that provided for recovery of attorney's fees "incurred in connection with the enforcement" of the loan documents. The opinion underscores the need for (i) careful drafting of [...]