HASTIE, Circuit Judge.
Plaintiff, Morgenstern Chemical Company, brought this suit in the District Court for the District of New Jersey for an injunction against the continued use by defendant, Shering Corporation, of the registered trade-mark, "Combisul", which was alleged to be confusingly similar to the
Taking the position that the issues raised by the defendant were not relevant to its claim, the plaintiff moved for summary judgment on the complaint, answer, and supporting affidavits.
The district court dismissed the motion for summary judgment "because of the presence of genuine issues of fact". From this order, the plaintiff appeals.
The question whether such an order is appealable seems rarely to have arisen. This may reflect rather general acceptance of the view that orders denying summary judgment are not appealable, whatever the character of the litigation.
The defendant argues that the order appealed from is neither final nor within the exceptional group of appealable interlocutory orders, and that this appeal should therefore be dismissed. We agree.
The denial of a motion for summary judgment because of the presence of genuine issues of fact is not normally appealable.
The plaintiff urges, however, that the result should be different when a motion for summary judgment is denied, which, if granted, would have resulted in an injunction. The situation is said to be within § 1292(1) of the Judicial Code which provides that courts of appeals shall have jurisdiction of appeals from interlocutory orders of district courts "refusing" injunctions. 28 U.S.C.A. § 1292(1), 62 Stat. 929 (1948).
Plaintiff says it was "refused" an injunction, meaning that the order of the court in effect prevented it from obtaining
Although neither connotation distorts the verb "refuse" we have not found it difficult to choose between them. Guidance is to be found in the contrast between the order in this case and those heretofore held appealable as refusals of injunctions. Congress first authorized appeals from interlocutory orders refusing injunctions in 1895.
The denial of summary judgment in the court below has no comparable significance. The court has not reached, much less decided, the merits of plaintiff's claim for injunction. The motion for summary judgment is not an application for a preliminary injunction. Nothing has occurred in or as a result of the denial of the motion which precludes plaintiff from seeking a temporary injunction in accordance with established procedure if he believes immediate injunctive relief is necessary and proper. Plaintiff is merely relegated to the normal procedure of trial which would have been the only procedure before the adoption of Rule 56. In terms of the issues of the present case, the effect of the court's decision is merely to require the submission of additional evidence before the court will undertake to determine whether two trademarks are confusingly similar.
It follows that the order below lacks the potential of drastic and far reaching effect on the rights of the parties which is characteristic of orders which decide the propriety of granting or refusing injunctions. Such potential supplies the rational basis for the incursion upon the general policy proscribing interlocutory appeals in the exceptional situations covered by § 1292. This view has recently been expressed by the Supreme Court in its statement that § 1292 indicates "the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties." Cohen v. Beneficial Indus. Loan Corp., 1949, 337 U.S. 541, 545, 69 S.Ct. 1221, 1225. Similarly, in this circuit we have said, "The manifest purpose of the statute is to enable a litigant to seek prompt review in an appellate court from an order or decree which in most instances is effective upon its rendition and is drastic and far reaching in effect." Maxwell v. Enterprise Wall Paper Co., 3 Cir., 1942, 131 F.2d 400, 402. Thus, to construe § 1292 as applicable to the present order would unnecessarily divorce the meaning of the language used from its apparent purpose.
Plaintiff himself has recognized the significance of this line of argument by calling our attention to cases which emphasize that it is the substance of the rights affected rather than the form of the order which determines appealability. E. g., Ettelson v. Metropolitan Life Insurance Co., 1942, 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176;
Two other factors deserve mention. The Rules of Civil Procedure were not intended to broaden the scope of review of decisions of district courts. Cf. United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058. If our analysis of the contrast between the substance of this order and the substance of interlocutory orders heretofore reviewable is correct, we are asked to employ these Rules to accomplish an appreciable broadening of the scope of interlocutory appeals.
Finally, the procedure for summary judgment under Rule 56 is similar and comparable to the procedure for judgment on the pleadings under Rule 12. Indeed, a motion under Rule 12, can, in proper case, be disposed of as a motion for summary judgment under Rule 56.
We are satisfied that the order appealed from is not an order refusing an injunction within the meaning of § 1292(1).
The appeal will be dismissed.
In Ring v. Spina, 2 Cir., 1945, 148 F.2d 647, 160 A.L.R. 371 and in Betmar Hats v. Young America Hats, 2 Cir., 1941, 116 F.2d 956, the order appealed from was the denial of a motion for preliminary injunction. Accord, King Mechanism & Engineering Co. v. Western Wheeled Scraper Co., 7 Cir., 1932, 59 F.2d 546.
"(1) Interlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions * * *."