March 1, 2019
By: Woods Drinkwater and John Baxter
The U.S. Supreme Court heard oral argument in the matter of Mission Product Holdings Inc. v. Tempnology LLC (In re Tempnology LLC) on Feb. 20, 2019.[1] The petitioners hope to resolve a circuit split regarding ongoing trademark usage pursuant to a license agreement following the rejection of such agreement under Title 11 U.S.C. Sections 365(a) and (n). Case Overview The primary issue in Tempnology first arose in the seminal 1985 case Lubrizol Enters. Inc. v. Richmond Metal Finishers Inc., in which the Fourth Circuit held that an “executory contract” under Section 365(a) of the Title 11 of the United States Code included intellectual property licenses.[2] Further, the Lubrizol court held that rejection of an executory contract effectively terminates an intellectual property license.
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