Summary
In Marcus Breier Sons v. Marvlo Fabrics, 173 F.2d 29 (2nd Cir. 1949), the Court stated "Disputes between parties as to trade-mark validity and infringement can rarely be determined satisfactorily on a motion for summary judgment."
Summary of this case from Wells Fargo Co. v. Wells Fargo Express Co.Opinion
No. 182, Docket 21240.
March 7, 1949
Appeal from the United States District Court for the Southern District of New York.
Action by Marcus Breier Sons, Inc., against Marvlo Fabrics, Inc., wherein the defendant filed counterclaims. From an order denying defendant's motion for summary judgment on its first counterclaim alleging that there had been no infringement of plaintiff's registered trade-mark No. 361,448, defendant appeals.
Appeal dismissed.
Herman Seid, of New York City, for plaintiff-appellee.
Louis Barnett, of New York City (Albert T. Scharps, of New York City, of counsel), for defendant-appellant.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
This is an appeal by the defendant from an order denying its motion for summary judgment upon its first counterclaim. In Drittel v. Friedman, 2 Cir., 154 F.2d 653, this court held that an appeal will not lie from such an order. It is purely interlocutory, inasmuch as it does no more than would an order under earlier practice overruling a demurrer. In other words, it leaves the issues raised by the defendant's first counterclaim and the reply thereto to be tried. We may add that this disposition by Judge Kaufman of the above issues seems to have been wise. Disputes between parties as to trade-mark validity and infringement can rarely be determined satisfactorily on a motion for summary judgment. The record makes it clear that such was the situation in the case at bar. In any event as the order was not final no appeal from it was permissible.
Appeal dismissed.