Ercona Camera Corp. v. Brownell

246 F.2d 675, 100 U.S. App. D.C. 394

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 16, 1957
• Docket: No. 13538
• Status: Published

Opinion

PER CURIAM.

Plaintiffs-appellants were in the business of importing cameras and similar articles from East Germany bearing the trademark “Zeiss.” The Attorney General of the United States, claiming own ership of this trademark as seized ene¹ my property, invoked the provisions o 19 U.S.C.A. § 1526, making it “unlawfu to import into the United States” mer chandise bearing a trademark owned i the United States, without the writte consent of the owner of the trademar Plaintiffs brought suit in the Distri Court against the Attorney General, t Secretary of the Treasury, and the Con missioner of Customs for a decree daring that the Attorney General h no right to the" exclusive use of t trademark, and enjoining the defenda from interfering with plaintiffs’ imp tation of the goods in question. Plai tiffs moved for summary judgment a for a preliminary injunction. B were denied, and plaintiffs appealed.

As to the denial of the summary ju ment, which was ordered by the Dist Court without specification of its sons, the Government moved in court to dismiss the appeal. That tion will be granted. See Division v. Capital Transit Co., 1955, 97 U.S.App.D.C. 4, 227 F.2d 19.¹ As to appella appeal from the denial of their mo for a preliminary injunction, we ar the opinion that the ruling of the trict Court was a proper exercise o discretion, and accordingly affirm, do not reach the merits of the case, intimate no view about them.

So ordered.

1 . As in the case cited, ‘'there is nothing in the record to indicate that the equity powers of the District Court were invoked on the motion for summary judgment.” 97 U.S.App.D.C. at pages 4-5, 227 F.2d at pages 19-20 (concurring opinion). In fact, appellants’ motions for summary judgment and preliminary injunction were filed separately and were denied on different days. “At least wi out a clear showing that the court c sidered the merits of a plea to its equi ble jurisdiction, the denial of sumnv judgment cannot be deemed an ‘interl tory order * * * refusing’ an junction within § 1292(1) [ot£ title U.S.C.].” Ibid.