NYIPLA Files an Amicus Brief in Mission Products Holdings, Inc. V. Tempnology, LLC. 

Peter Thurlow, Robert Isackson, Martin Schwimmer, Stephen Smirti Jr., Michael Cannata, Frank Misiti, and Stuart Gordon were authors on the brief. 

Earlier this week, the NYIPLA submitted an amicus brief to the Supreme Court in Mission Product Holdings, Inc. v. Tempnology, LLC, a case concerning the rights of a trademark licensee to continue to use a trademark after a licensor declares bankruptcy and rejects the license agreement.   

The case is currently before the Supreme Court based on a circuit split; the First Circuit concluding that a debtor-licensor’s rejection of a trademark license terminates a licensee’s right to use a trademark and, conversely, the Seventh Circuit concluding that under such circumstances, a trademark licensee’s rights were not extinguished.  

The NYIPLA’s brief was submitted in support of the petitioner, that is, the licensee.  The brief argued several points, including: (1) that a plain construction of Section 365 of the Bankruptcy Code demonstrates that the rejection of a trademark license by a debtor-licensor should be treated only as a breach of the license, not as a termination of the license; (2) if the rights that have been granted to a licensee in a license agreement rise to the level of a property interest, such interest cannot be divested by operation of bankruptcy law and the license agreement cannot be terminated; and (3) the quality control requirements of trademark licensing law do not preclude a licensee’s continued use of a trademark after rejection.

To read the full amicus curiae brief, click HERE