The Stouffer Corporation v. Holzman & Daw, Inc.

892 F.2d 1049 NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. The STOUFFER CORPORATION, Appellant, v. HOLZMAN & DAW, INC., Appellee. No. 89-1191. United States Court of Appeals, Federal Circuit. Oct. 16, 1989. Before MARKEY, Chief Judge, and PAULINE NEWMAN and ARCHER, Circuit Judges. ARCHER, Circuit Judge. ORDER [1] The Stouffer Corporation (Stouffer) appeals from the order of the United States Patent and Trademark Office, Trademark Trial and Appeal Board (Board), Opposition No. 76,551, dated September 30, 1988, (1) granting the summary judgment motion of the applicant, Holzman & Daw, Inc. (Holzman), that there is no likelihood of confusion between its mark and the registered marks of Stouffer, (2) denying Stouffer's cross-motion for summary judgment on likelihood of confusion and alleged illegal use by Holzman of its mark, and (3) ordering the rescheduling of trial on the issues of illegal use and nonuse of Holzman's mark. In Copelands' Enters., Inc. v. CNV, Inc., --- F.2d ----, --- USPQ2d ---- (Fed.Cir. October 13, 1989) (in banc ), we held that an order of the Board granting summary judgment which does not dispose of the entire case before the Board is not immediately appealable. Stouffer's appeal from the order granting summary judgment is therefore premature. Further, the denial of a motion for summary judgment is interlocutory, nonfinal and nonappealable. Parker Bros. v. Tuxedo Monopoly, Inc., 757 F.2d 254, 255, 226 USPQ 11 (Fed.Cir.1985). [2] Accordingly, IT IS ORDERED that the appeal be dismissed.