, managing partner of Debevoise & Plimpton’s Washington, D.C. office, chairs the firm’s corporate intellectual property and information technology practice. His practice also encompasses copyright and other intellectual property litigation matters, particularly those involving new technologies, as well as media and communications law. He has broad experience in corporate transactions, including mergers and acquisitions, licenses, joint ventures and outsourcing arrangements. In addition, he leads the firm’s corporate data protection and cybersecurity practices. Mr. Cunard is the author of, and contributes to, books and articles on communications and intellectual property law, and he speaks widely on both subjects.
For More information or to contact Jeffrey, please visit his Firm Profile Page.
Late Monday evening, Congress passed a massive omnibus budget bill to avert a federal government shutdown and provide critical COVID-19 relief. But that is not all – much to the surprise of the intellectual property world, the last-minute bill included several pieces of legislation, previously thought to be sidetracked in light of the current lame duck administration, that will alter the landscape of trademark, copyright and patent law as we know it. The changes include a Trademark Modernization Act that restores the rebuttable presumption of irreparable harm when a Lanham Act violation has been proven, allowing brand owners to more easily obtain injunctions, and the creation of a copyright small claims tribunal within the Copyright Office.
On Wednesday, February 20, the U.S. Supreme Court heard oral arguments in Mission Product Holdings, Inc. v. Tempnology, LLC, where the Court was asked to address one of the most important issues at the intersection of trademark law and bankruptcy law: whether a debtor-licensor’s rejection of a trademark license terminates the rights of the licensee to use that trademark. Taking seriously the language of the question presented, and generally acknowledging that 11 U.S.C. § 365(g) provides that rejection constitutes a “breach” of the contract, the justices focused on the remedies for breach outside of bankruptcy law and whether, because trademarks (and quality control issues) are involved, deviation from ordinary, contract law principles is warranted. Both the advocates and the justices returned to whether analogies, including with respect to breaches of apartment and photocopier leases, are apposite. The question of whether the case was moot also received some attention, though it seems unlikely that the case will be dismissed on that ground.