Bankruptcy Law Blog

Trademarks are the other IP. Under Section 101(35A) of the Bankruptcy Code, you won't find the word "trademark".  In 1985, the Court of Appeals for the Fourth Circuit entered its decision in Lubrizol Enterp. v Richmond Metal Finishers .   In that case, the Court allowed a debtor to reject an executory contract which contained a grant of certain rights to intellectual property. In response to Lubrizol , Congress enacted Section 365(n) of the Bankruptcy Code.  But, trademarks aren't included in the definition of "intellectual property" under Section 101 of the Bankruptcy Code.  And, it is this definition of "intellectual property" upon which Section 365(n) relies. So you say, then trademarks aren't intellectual property under the Bankruptcy Code.  Well -- that may depend on where you are.  More on this in future posts. www.JackRoseLaw.com  Posts in this blog contain discussions of general principles of law and cases. No post, comment or

Discussions regarding executory contracts are common in the bankruptcy context.  The reason is simple.  Many executory contracts can be rejected (or assumed and assigned notwithstanding contractual restrictions on assignment) pursuant to the provisions of Section 365 of the Bankruptcy Code.  If you are a counterparty to one of these contracts such actions by a debtor may have a material impact on your rights. But what is an executory contract versus a real estate interest. Over the next several posts we will discuss some of these issues. www.JackRoseLaw.com  Posts in this blog contain discussions of general principles of law and cases. No post, comment or discussion constitutes or should be taken as legal advice. To obtain legal advice you should retain counsel. Legal advice requires a review of the specific facts and circumstances of your case.

For those that aren't familiar with Jevic, the Supreme Court set forth the facts in a straight forward summary -- "In the case before us, a Bankruptcy Court dismissed a Chapter 11 bankruptcy. But the court did not simply restore the prepetition status quo .  Instead, the court ordered a distribution of estate assets that gave money to high-priority secured creditors and to low-priority general unsecured creditors but which skipped certain dissenting mid-priority creditors                                             *   *   * In our view, a bankruptcy court does not have such a power. A distribution scheme ordered in connection with the dismissal of a Chapter 11 case cannot, without the consent of the affected parties, deviate from the basic priority rules that apply under the primary mechanisms the Code establishes for final distributions of estate value in business bankruptcies." Thus, under Jevic an order providing for a structured dismissal cannot vio

Since the Supreme Court decided Czyzewski v Jevic Holding Corp. , a number of articles and court decisions have come through.  In a series of posts over the next several weeks, we will identify several of these decisions and provide you with a list of articles on the subject. Posts in this blog contain discussions of general principles of law and cases. No post, comment or discussion constitutes or should be taken as legal advice. To obtain legal advice you should retain counsel. Legal advice requires a review of the specific facts and circumstances of your case.