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U.S. Bankruptcy Court. U.S. Bankruptcy Court.

Generally, under Section 365(g), rejection is treated as a breach of contract immediately prior to the petition date, often leaving the counterparty with little more than a general unsecured damages claim. An exception to this rule exists when the debtor, as licensor of “intellectual property,” rejects, in which case Section 365(n) permits the nondebtor licensee to retain its contractual rights to use the intellectual property for the duration of the agreement. Curiously, however, Congress failed to specifically include trademarks within the Section 101(35A) definition of “intellectual property,” resulting in a split among courts over the proper treatment of a rejected trademark license. Recently widening the split and adding additional gloss is a First Circuit case of first impression, which held that upon rejection of a trademark license, the nondebtor licensee lost all post-rejection rights to use such trademarks in Mission Product Holdings v. Tempnology (In re Tempnology), 2018 U.S. App. LEXIS 870 (1st Cir. Jan. 12, 2018).

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