In my September 11 blog post, Give Me Liberty, or Give Me Death?, I noted that the First Circuit’s decision in Tempnology—that rejection of a trademark license in bankruptcy divested the nondebtor licensee of its right to use the trademark—was subject to the licensee’s pending petition for certiorari. On October 26, 2018, the United States Supreme Court granted that petition and is expected in 2019 to resolve the circuit split on the effect of rejection of a trademark license. The question before the Supreme Court will be as follows: “Whether, under §365 of the Bankruptcy Code, a debtor-licensor’s ‘rejection’ of a license agreement— which ‘constitutes a breach of such contract,’ 11 U.S.C. §365(g)—terminates rights of the licensee that would survive the licensor’s breach under applicable nonbankruptcy law.”
We will continue to update this blog as the case unfolds.