On July 26, 2011, the U.S. Court of Appeals for the Seventh Circuit issued In re XMH Corp.,[1] recognizing for the first time in a published U.S. Court of Appeals opinion that a trademark license is not assignable in bankruptcy without the licensor’s consent. This recognition, however, comes with a significant caveat. Although the opinion, authored by the respected Judge Richard A.
In these economic times, situations involving a licensing counterparty filing for bankruptcy are becoming more common, so it is vital for practitioners to address bankruptcy issues upfront during the negotiation of the licensing agreement. This is especially true for licensees who often rely heavily, if not exclusively, on a licensor for significant aspects of their business.
When last we spoke of net neutrality, the Federal Communications Commission ("FCC") was considering the case of Comcast which was accused of using new technology to peek inside packets traversing its network and intentionally slowing or degrading the operation of "peer-to-peer" and similar applications. One of the potential motivations for Comcast's behavior is that peer-to-peer applications are often used to exchange media content [music or video] that might be substituted for the content Comcast sells to its cable customers.
Net neutrality is a term coined by the telecommunications industry to refer to the use of the Internet in delivering a variety of communications media such as voice (VoIP), video and music. The FCC is poised to determine (or not determine) the regulatory treatment of the Internet in a variety of pending proposed rulemaking and forbearance dockets. The outcome of these proceedings may well predict the next wave of winners and losers in telecommunications arena and, correspondingly, the next candidates for corporate reorganization.
Internet special interests like Google, eBay, Amazon and Moveon.org are lobbying hard for new utility-like regulation of broadband competitors called “net neutrality.” Fearing hypothetical discrimination, net neutrality regulation proponents want government to preemptively mandate a one-tier Internet where all Internet traffic would be treated equally.
Adapted excerpt from the ABI Bankruptcy Telecommunications Manual, Second Edition (2007), available at www.abiworld.org/abistore.