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The Witness: Unfolding the Anatomy of a Killer. The court did not determine whether rejection terminated CAMs right to use the trademarks. The Bankruptcy Court allowed CAM to use the trademarks on the basis of equitable grounds since it had invested resources in manufacturing the fans. Jarden claimed that CAM had to cease production and sales once Lakewoods requirements ceased.
There was a direct appeal to the 7th Circuit, which had to determine the effect of the trustees rejection.
While the 7th Circuit affirmed the lower courts holding, it disagreed with the equitable basis of the holding and analyzed whether under Section g of the Bankruptcy Code, moncler pas cher , rejection of the supply agreement affected the licensees continuing right to use the trademarks.
Previously, the 4th Circuit in Lubrizol held that when an intellectual property license is rejected in bankruptcy, the licensee loses the ability to use any licensed copyrights, trademarks and patents. Congress enacted Section n to the Bankruptcy Code three years after Lubrizol to allow licensees the right to continue using the intellectual property after rejection, provided that they met certain conditions. The 7th Circuit reviewed whether the court in Lubrizol correctly understood the consequences of rejection under the Bankruptcy Code.
The term intellectual property as defined under the Bankruptcy Code includes patents, copyrights and trade secrets, but not trademarks. The legislative history notes indicate that that omission was intended to allow Congress more time to study trademarks. Because of the omission, the 7th Circuit reasoned that trademarks are unaffected by Section n of the Bankruptcy Code. The 7th Circuit dismissed arguments based in equity, following the Supreme Courts recent decision on another section of the Bankruptcy Code, where it applied well-established principles of statutory construction.
The 7th Circuit noted that arguments based on views about the purposes behind the Code, and wise public policy, cannot be used to supersede the Codes provisions. After the trustees rejection of an intellectual property licensee granted by the debtor, the licensees rights depend on what the Bankruptcy Code provides rather than on notions of equity.
The 7th Circuit looked at the concurring opinion of 3rd Circuit Judge Thomas Ambro in In re Exide Technologies , the only other appellate case somewhat on point. Judge Ambro concluded that, had the contract at hand been eligible for rejection under Section a , the licensee could have continued using the trademarks. The 7th Circuit agreed with Judge Ambro that Lubrizol was incorrect. It noted that outside the bankruptcy context a licensors breach does not terminate a licensees right to use intellectual property. The Bankruptcy Code, moncler doudoune , by classifying the debtors rejection of an executory contract as a breach of Section g , Moncler Pas Cher , establishes that in bankruptcy, as outside that context, the other partys rights remain in place.
Upon rejection of a contract, jordan , the debtors unfulfilled obligations become damages which are treated as a pre-petition obligation. The counterparties rights in a rejection scenario are not vaporized. The 7th Circuit provided an example of rejection in the lease context: A lessor that enters bankruptcy may not, by rejecting the lease, Doudoune Moncler , end the tenants right to possession and thus reacquire premises that might be rented out for a higher price. The bankrupt lessor might substitute damages for an obligation to make repairs, but not rescind the lease altogether. Rejection of debtors executory contract is not the functional equivalent of a rescission, rendering void the contract and requiring that the parties be put back in the positions they occupied before the contract was formed.
Rather, rejection merely frees the estate from the obligation to perform and has absolutely no effect upon the contracts continued existence. Without agreeing or disagreeing with the Lubrizol court, jordan pas cher , other courts have similarly held that rejection doesnt vitiate a contracts continued existence; the contract is not canceled, repudiated, rescinded or in any other fashion terminated. In In re Flagstaff Realty Associates , the 3rd Circuit held that that rejection of a lease does not alter the substantive rights of the parties to the lease.
Rejection does not terminate state law rights in or to specific property. Rejection does not change the substantive rights of the parties to the contract, but merely means that the bankruptcy estate itself will not become a party to it. Rejection isnt a termination of the contract, it is merely a breach that leaves the parties to their states law remedies.
This decision provides relief for trademark licensees, at least within the 7th Circuit, that in the event of the licensors bankruptcy and rejection of the license agreement, the trademark licensee may nevertheless continue to use the licensed trademark. In the context of distressed asset sales, debtors may worry that the value of their trademarks is diminished if pre-existing licensees may continue to use them.
Yet licensees must still be cautious that their intellectual property rights are not extinguished in a sale of assets free and clear under Section of the Bankruptcy Code. Trademark licensees outside the jurisdiction of the 7th Circuit may retain counsel to implement strategies to protect their rights in a bankruptcy. These strategies include:? Specifying in the license that upon rejection, the licensee has the continued right to use the mark through the license period.
Creating a bankruptcy-remote special purpose entity that owns and licenses the trademark. Structuring payments or requiring liquidated damages so that the debtor has little incentive to reject the contract. Finally , Sunbeam puts into play a discussion over which rights may be retained under any rejected contract.
The Sunbeam reasoning could apply to other provisions of rejected contracts, such as non-monetary remedies. For example, the rejection of an employment agreement or purchase agreement containing a non-compete provision may result in the ability of the non-debtor party to enforce the non-compete covenants of the rejecting debtor.
The Sunbeam analysis could also apply to foreign patents otherwise outside the protections of Section n.
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By noting that rejection is not the same as termination, the decision raises arguments that Section n is not necessary because relief may be formulated under different grounds. This article was original published in , Vol.
In this postbr?? In this post. Next month parliamentarians are set to extend leases allocated in Congress passed the bill, even in Saudi Arabia where King Abdullah recently announced double the expected number of women for appointment to the Shura Council Saudi Arabias top consultative body ; the experience of becoming agents of positive change bringing attention to issues ranging from environmental concerns to creating a culture of volunteerism; and the experience of standing together with men working toward collective, from every ethnic and religious background, jordan retro 11 , But his speech was.
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