Parker Brothers v. Tuxedo Monopoly, Inc.

757 F.2d 254

226 U.S.P.Q. 11

PARKER BROTHERS, Appellant,
v.
TUXEDO MONOPOLY, INC., Appellee.

Appeal No. 84-1499.

United States Court of Appeals,
Federal Circuit.

March 1, 1985.

Oliver P. Howes, Jr., Nims, Howes, Collison & Isner, New York City, for appellant.

Virginia R. Richard, Kane, Dalsimer, Kane, Sullivan & Kurucz, New York City, for appellee.

Before MARKEY, Chief Judge, RICH, Circuit Judge, and COWEN, Senior Circuit Judge.

ORDER

MARKEY, Chief Judge.

1

Parker Brothers appeals from denial by the Trademark Trial and Appeal Board (Board) of its motion for summary judgment.*

2

As is its duty, the court raises sua sponte the question of its jurisdiction to hear this appeal. Mansfield, C & L M.R.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884); Wagner Shokai, Inc. v. Kabushiki Kaisha Wako, 699 F.2d 1390, 1391, 217 USPQ 98 (Fed.Cir.1983). See generally 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE Secs. 1350, 1393.

3

An order denying a motion for summary judgment is interlocutory, non-final, and non-appealable. 28 USC Secs. 1291, 1292. That rule is applicable to orders entered by the Board. R.G. Barry Corp. v. Mushroom Makers, Inc., 609 F.2d 1002, 204 USPQ 195 (CCPA 1979); see also Wagner Shokai, 699 F.2d at 1391, 217 USPQ at 98. See generally 6 J. Moore & J. Wicker, MOORE'S FEDERAL PRACTICE p 56.21 (2d ed. 1982).

It is therefore ORDERED

4

1) that the appeal be dismissed.

*

Tuxedo Monopoly, Inc. (TUXEDO) asks this court to reverse the Board's denial of its motion for summary judgment and to order cancellation of Parker's registrations. Tuxedo filed no appeal, and its requests are therefore improper