In a recent decision, the First Circuit Court of Appeals ruled that the rejection by a licensor of a trademark license stripped the licensee of its right to use the trademark post-rejection, reversing a decision by the intermediate bankruptcy appellate panel (BAP) and reinstating the bankruptcy court’s original judgment. In re Tempnology, LLC, 2018 WL 387621 (1st Cir. Jan. 12, 2018), reversing in part 559 B.R. 809 (B.A.P. 1st Cir. 2016). The First Circuit did, however, affirm that the rejection stripped the licensee's exclusive product distribution rights.

Introduction

Recent Developments

“You cannot properly appraise the real seriousness of that situation unless you are right there in the city. Everything that frugal men and women put aside for years to save for old age, to get security for themselves – everything that they put aside to make the lot of their children a better one than their own, is now likely to be swept away. There is only one way that you can lighten the load of the municipality and that is to take its debt service off for the time being. Specifically, so that you will understand it, what is it in the city of Detroit?

Recent Developments

The Federal Government yesterday announced a package of temporary measures to assist financially distressed companies. The package is intended to allow distressed businesses (and individuals) time to weather the uncertain storm of Covid-19 and resume normal business once the immediate crisis is over.

Each element of the package will apply (at this stage) for 6 months.

Boensch v Pascoe [2019] HCA 49

The High Court has recently considered the question of whether, and in what circumstances, property held by a bankrupt on trust for a third party vests in the trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act 1966 (Cth): Boensch v Pascoe [2019] HCA 49. The decision was handed down late last year, providing further guidance for trustees following Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth (2019) 93 ALJR 807.

Forum bias, along with some technical issues, are still challenges in cross-border insolvencies in Australia

Just over ten years ago, Lehman Brothers filed for bankruptcy in the US, which turned out to be one of the largest cross-border insolvency cases in history.

Last year also marks:

Prior to March 2017, any right to sue that comprised an asset of a bankrupt’s estate could only be litigated by the trustee of the bankrupt. The inability of a trustee to assign a bankrupt’s cause of action resulted in many such actions not being litigated due to factors such as a lack of resources. This position changed through the insertion into the Bankruptcy Act 1966 (Cth) in Schedule 2 of the Insolvency Practice Schedule (Bankruptcy), which expressly permits a trustee to assign to a third party any right to sue that is held by of a bankrupt estate (see section 100-5).

The operation of section 133 

The law currently provides an easy out for trustees of a bankrupt, specifically in respect of real property  

Section 133 of the Bankruptcy Act 1966 (Cth) (the Act) provides an option for the trustee in bankruptcy to disclaim real property where it is burdened by onerous covenants. This disclaimer is often exercised where the amount owed in the form of a mortgage and further caveats or covenants registered on title of the real property exceeds the value of the property.