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Intellectual Property Issues in Asset-Based Lending

By Richard Raysman and Peter Brown New York Journal According to the U.S. Patent and Trademark Office, U.S. intellectual property is worth more than $5 trillion. Intellectual property is considered a "general intangible" within the meaning of UCC §9-106. As such, intellectual property that may be used as collateral in a security transaction in the asset-based lending context includes trademarks and trade names, patents, trade secrets, copyrights, and software, as well as contract rights such as software licenses (which, in essence, is the right to exploit the intellectual property without liability for infringement). See generally T.S. Note Co. v. United Kan. Bank & Trust (In re Topsy's Shoppes Inc.), 131 B.R. 886, 888-889 (Bankr. D. Kan. 1991). Domain names, along with other intangibles such as trade secrets fall within the UCC's definition of general intangibles. A domain name can have significant value, akin to the value of a unique telephone number for a business. For example, earlier this year the domain name "fund.com" was sold for nearly $10 million. Over the last decade, courts have wrestled with the issue of whether a domain name is intangible property, or merely representative of a contract between the owner and a domain name registrar.

Full post as published by The Trade Secrets Vault on December 18, 2008 (boomark / email).