Trademark Protection in Bankruptcy Proceedings: A Closer Look at Lubrizol and its Progeny

Abstract

When the worlds of bankruptcy and intellectual property licenses converge, licensees are placed in potentially dangerous positions. The seminal case on this issue,  Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc. ,  stands for the proposition that when a licensor rejects an intellectual property license as "executory," the licensee no longer has the right to rely on provisions within the agreement with the debtor for continued use of the technology. To countermand the negative effects of  Lubrizol , Congress amended the Bankruptcy Code, but intentionally omitted trademarks from the definition of intellectual property. This omission has produced a string of conflicting case law, leaving trademark licensees in a precarious position with few options for recourse. This Note discusses the Intellectual Property Bankruptcy Protection Act and trademark protection specifically, and details the circuit split created by  Sunbeam Products, Inc. v. Chicago American Manufacturing . This Note focuses on the implications of the circuit split, and concludes by providing some suggestions for how courts can resolve this issue in the future.