Mission Product Holdings, Inc. v. Tempnology, LLC, U.S., No. 17-1657, filed 12/17/2018. December 17, 2018

A debtor-licensor’s “rejection” of a license agreement— which “constitutes a breach of such contract,” 11 U.S.C. § 365(g)—does not terminate those licensee rights that would survive the licensor’s breach under applicable non-bankruptcy law, AIPLA argued to the Supreme Court in a December 17, 2018 amicus brief.

A trademark licensee’s right to use the licensed mark after the debtor-licensor’s rejection of an executory contract containing a trademark license must be determined under applicable non-bankruptcy law, according to the brief.

Rejection of such an executory contract is only a breach, the brief states, and absent express Bankruptcy Code provisions on trademark licenses, the effect of the breach must be decided under applicable non-bankruptcy law and the language of the contract.