Emory Bankruptcy Developments Journal


In 1988, Congress amended § 365 of the Bankruptcy Code to allow intellectual property licenses to retain usage rights following the rejection of an executory contract. Unfortunately, this amendment did not include trademarks in its definition of intellectual property. The author thoroughly examines the circuit split, comparing and contrasting the dueling circuit court decisions over whether trademark licenses should receive the same protections as other intellectual property. In analyzing this circuit split, the author centrally focuses on Mission Product Holdings, Inc. v. Tempnology, LLC, a case out of the First Circuit Court of Appeals. The author concludes by proposing a three-factor test to aid courts in arriving at the most equitable result for not only the debtor's estate, but also society writ-large.