September 04, 2018

Trademarks Are Not Intellectual Property in Bankruptcy Cases: So Circuits Are Split on What Happens upon Rejection of Trademark Licenses

By John R. Knapp, Jr.

Words have meaning. In federal statutes, Congress gets to define them. And in the world of federal bankruptcy law, intellectual property does not mean trademarks. Congress intentionally excluded trademarks from the definition of the term as it is used in the Bankruptcy Code.1 Intellectual property is only any “(A) trade secret; (B) invention, process, design, or plant protected under title 35 [United States Code]; (C) patent application; (D) plant variety; (E) work of authorship protected under title 17 [United States Code]; or (F) mask work2 protected under chapter 9 of title 17 [United States Code]; to the extent protected by applicable nonbankruptcy law.”3

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