The Famous Amos Chocolate Chip Cookie Corporation, Plaintiff-appellee, v. Wally Amos, Defendant-appellant, 991 F.2d 811 (Fed. Cir. 1993)

ORDER

This court issued an order dated March 12, 1993, directing the parties to file a response addressing this court's jurisdiction over this interlocutory appeal of a preliminary injunction. In response, both parties asked this court to transfer the case to the United States Court of Appeals for the Ninth Circuit. We treat this request as a motion to transfer. Appellant's notice of appeal, dated August 21, 1992, stated that the appeal was being made to the United States Court of Appeals for the Ninth Circuit. The notice of appeal form was incorrectly forwarded to this court by the Clerk of the District Court for the Northern District of California.

Under 28 U.S.C. § 1292(c) (1) (1988), this court has jurisdiction over interlocutory appeals in any case over which this court would have jurisdiction over a final judgment or order under 28 U.S.C. § 1295 (1988). Section 1295(a) (1) provides this court with exclusive jurisdiction of an appeal from a district court if the jurisdiction of the district court was based in whole or in part on 28 U.S.C. § 1338 (1988), "except that ... a claim arising under any Act of Congress relating to ... trademarks and no other claims under section 1338(a) shall be governed by sections 1291, 1292, and 1294." The parties have stated that this case involves a claim arising under the trademark laws and no other claims under 28 U.S.C. § 1338(a). Therefore, this court lacks jurisdiction over this appeal because it does not meet the requirement of 28 U.S.C. § 1295(a) (1).

Accordingly,

IT IS ORDERED THAT:

The appeal be transferred to the United States Court of Appeals for the Ninth Circuit, pursuant to 28 U.S.C. § 1631 (1988).