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Sep 01, 2014
Reinout Vriesendorp, Ruud Hermans and Jan Pieter Hustinx, Gertjan Kuipers,
Rob van den Sigtenhorst and Berto Winters, De Brauw Blackstone Westbroek N.V., The Netherlands
First published on www.debrauw.com

Licensees slightly better off in bankruptcy of Dutch li...


Reinout Vriesendorp, Ruud Hermans and Jan Pieter Hustinx, Gertjan Kuipers, , Rob van den Sigtenhorst and Berto Winters, De Brauw Blackstone Westbroek N.V., The Netherlands, First published on www.debrauw.comThe Dutch Supreme Court on 11 July 2014 handed down a decision that improves the position of licensees in case of bankruptcy of a Dutch licensor, and of other parties deriving a right of use from a Dutch counterparty that goes bankrupt. The Court reconsidered, or at least qualified, its decision in Nebula. Unfortunately, despite this new ruling, licensees will still have to take steps to protect themselves against a bankruptcy of their Dutch licensor, such as putting the relevant IP rights into a bankruptcy remote special purpose vehicle or setting up a usufruct structure.
After Nebula, licence agreements with a Dutch licensor were considered not bankruptcy-proof. Under Dutch bankruptcy law, the bankruptcy trustee has the possibility to breach agreements. According to Nebula, this also applied to agreements where the debtor (licensor) only has the obligation to tolerate the use of an asset (IP right). In that event the user (licensee) could not continue  read more