In 1988, Congress amended § 365 of the Bankruptcy Code, which deals with the rejection of executory contracts, in order to allow intellectual property licensees to retain usage rights. However, this amendment did not include adding trademarks to the Bankruptcy Code’s definition of “intellectual property.” As such, Circuit Courts are divided on what remedies are available to trademark licensees following a licensor’s rejection of their agreement. Recently, the circuit split escalated when the First Circuit decided Mission Product Holdings, Inc. v. Tempnology, LLC, which was inconsistent with the Seventh Circuit’s 2014 holding in Sunbeam Products, Inc. v. Chicago American Manufacturing. Both sides of the circuit split fail to recognize the unique policies of trademark law–that if not respected in a licensing agreement, could result in naked licensing. This Comment proposes the bankruptcy code be amended to include trademarks in the definition of IP, or amended to allow the licensee to enforce terms that have been negotiated if the licensor enters bankruptcy.
Michael Hopkins, Insolvency and Trademarks: How the Bankruptcy Code's Treatment of Trademarks Promotes Naked Licensing, 18 J. Marshall Rev. Intell. Prop. L. 475 (2019)