The Stouffer Corporation, Appellant, v. Holzman & Daw, Inc., Appellee, 892 F.2d 1049 (Fed. Cir. 1989)

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US Court of Appeals for the Federal Circuit - 892 F.2d 1049 (Fed. Cir. 1989) Oct. 16, 1989

Before MARKEY, Chief Judge, and PAULINE NEWMAN and ARCHER, Circuit Judges.

ARCHER, Circuit Judge.


ORDER

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).

Accordingly, IT IS ORDERED that the appeal be dismissed.

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