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Franchisor Wins IP Dispute
In bankruptcy, the debtor is entitled to reject (not perform) burdensome contracts. For franchise agreements that contain trademark licenses, the effects of rejection are decided on a case-by-case basis. Sometimes the licensees of the trademarks can continue to use the trademarks over the objection of the franchisor and sometimes not. This issue arose in the Crumbs Bake Shop case in connection with the sale of its assets.
The franchisees (called licensees) of baked goods retailer Crumbs Bake Shop Inc. can continue to use the Crumbs trademark and sell products under the Crumbs brand for the remainder of their licenses' terms, even though the retailer, acting as debtor-in-possession, had moved to reject the licenses following the court's approval of the sale of the business's assets, in In re Crumbs Bake Shop, No. 14-24287, Bankr. N.J. (Oct.31, 2014, Kaplan, M.). The licensees could elect, under 11 U.S.C. Section 365(n), to retain their rights under their respective licenses even though “trademarks” were not included in the Bankruptcy Code definition of “intellectual property.” In addition, sale of the retailer's assets pursuant to 11 U.S.C. Sections 363(b) and (f) did not affect the rights of third-party licensees under Section 365(n). The court held royalties generated as a result of this use were payable to the retailer, because the agreements themselves had not been assumed, assigned, or rejected, and thus continued to be the retailer's property.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.
Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.