918 F. 2d 185 - Kellogg Company v. Pack'Em Enterprises Inc

Kellogg Company moves the court to determine its own jurisdiction. Pack'Em Enterprises, Inc. consents to the motion. At the direction of the court, the Commissioner responds urging dismissal of the appeal.

Pack'Em was a trademark applicant before the Trademark Trial and Appeal Board (TTAB). Kellogg opposed the application. Pack'Em counterclaimed that Kellogg's registration should be cancelled. The TTAB issued a partial summary judgment granting Pack'Em's motion for summary judgment, dismissing the opposition, and stating that the case would go forward with respect to the counterclaim.

Although Kellogg was prepared to treat the partial summary judgment as interlocutory and nonappealable, it was informally advised by the TTAB that it should appeal lest the PTO issue the certificate of registration to Pack'Em by virtue of the dismissal of the opposition.

Here, the Commissioner clarifies the official Board policy stating:

issuance of the application will be withheld pending entry of a final decision by the TTAB and any judicial review which takes place in this Court or a district court.

Evidently, a "practice" may have existed of passing applications to issue in circumstances similar to this case; if so, PTO, effective immediately has changed that practice.

Accordingly, the parties, the Commissioner, and this court being in agreement that the order appealed is interlocutory and nonappealable under Copelands' Enterprises, Inc. v. CNV Inc., 887 F.2d 1065 (Fed.Cir.1989) (in banc),

Kellogg's appeal is dismissed as premature.