License Agreement Executory

Bankruptcy law on the refusal of intellectual property contracts distinguishes trademark agreements from other intellectual property licenses. Unlike the standard treatment of performance contracts set out in Article 365(g), the special insolvency protection measures provided for in Article 365(n) offer specific treatment to patent and copyright licences that have been refused. This special treatment allows the licensee to continue to use the licensed intellectual property in accordance with the terms granted in exchange for payment of the royalties set out in the contract for the rights granted. In other words, Section 365(s) expressly allows a licensee to retain its rights under certain conditions, but this provision strikingly excludes trademark licenses from their scope. “Outside of bankruptcy, a licensor`s infringement does not terminate a licensee`s right to use intellectual property.” 34 The General Court also held that an infringement outside bankruptcy did not necessarily explode the rights of the non-infringed party. “Beyond insolvency, Lakewood would not have terminated CAM`s right to sell boxing fans by failing to fulfill its own obligations,”35 but could have had other remedies. By characterining the refusal as an infringement, Article 365 (g) transformed the debtor`s un performed obligations into damages, but did not otherwise remove the creditor`s rights from the contract. The notice distinguished the powers of refusal conferred by the agent under Section 365(a) from the powers of rental of the agent in other parts of the bankruptcy code, which effectively entail the lifting of contractual obligations, and it is concluded that “refusal is not the functional equivalent of a resignation”. 36 The U.S. Banking Code (11 U.S.C. . .

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