Lermer Germany GmbH and Lermer USA, Inc., appeal from an order of the United States District Court for the District of New Jersey. Because we conclude thаt we do not have jurisdiction to review the district court’s order, we dismiss the appeal.
I
Plaintiffs Lermer Germany and Lermer USA, Inc., filed an action against defendants Lermer Corp., Willi Lermer, Rolf Schwyn, and Rolf Gardey alleging, inter alia, common-law trademark infringement and patent infringement. The defendants counterclaimed, also alleging common-law trademark infringement. The trademark dispute centers on who owns the common-law right to use the mark “Lermer” in the United States in connection with the manufacture and sale of aircraft galley equipment.
Both sides moved for summary judgment on their respective trademark claims, and the district court denied both motions, concluding that there were genuine issues of material fact that precluded summary judgment. In an opinion accompanying the order, the court noted that “[pjlaintiffs and defendants also seek injunctive relief pursuant to Fed. R.Civ.P. 65(d).” Under a heading entitled “Prеliminary Injunction,” the court denied injunctive relief on the ground that the remaining factual disputes prevented the court from determining which party had a reasonable probability of success on the merits. In the order from which this appeal is taken, the court made no reference to prеliminary injunctive relief but simply stated that “both plaintiffs’ and defendants’ motions for partial summary judgment and for injunctive relief be and hereby are denied.”
II
The final judgment rule embodied in 28 U.S.C. § 1291 ensures that ordinarily a party may appeal only from a final judgment of the district court. Congress has created limited excеptions to the final judgment rule, one of which permits appeals to be taken from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to modify injunctions.” 28 U.S.C. § 1292(a)(1); see also 28 U.S.C. § 1292(c)(1).
The final judgment rule prohibits a party from appealing a district court’s denial of a motion for summary judgment.
See Gerber Garment Technology, Inc. v. Lectra Sys., Inc.,
does not settle or even tentatively decide anything about the merits of the clаim. It is strictly a pretrial order that decides only one thing — that the case should go to trial. Orders that in no way touch on the merits of the claim but only relatе to pretrial procedures are not in our view “interlocutory” within the meaning of § 1292(a)(1). We see no other way to protect the integrity of the congressional policy against piecemeal appeals.
See Carson v. American Brands, Inc.,
The plaintiffs assert, however, that this court has jurisdiction under 28 U.S.C. § 1292(a)(1) because in its opinion (although not in its order) the district court characterized its ruling as denying a preliminary injunction. The defendants respond that the appeal should be dismissed because, despite the district court’s apparent belief to the contrary, the plaintiffs did not move for or otherwise request a preliminary injunction.
We conclude that the plaintiffs did not request preliminary injunctive relief in the district court. The plaintiffs’ notiсe of motion states only that they are moving for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Their attached proposed order would have granted them summary judgment and would have permanently enjoined the defendants from using the Lermer mark. The plaintiffs concede that thеy did not explicitly request a preliminary injunction, and nothing in the record suggests that they took steps that could be construed as a request for preliminаry injunctive relief in the event the court denied their motion for summary judgment. We are thus faced with the unusual question of whether a party may appeal a district court’s order denying a preliminary injunction request that was never made.
The language of section 1292(a)(1) supports the defendants’ argument. Thе statute requires that the district court’s order be one “refusing” an injunction, which denotes the denial of a request. Moreover, there is no reason tо grant a right to appellate review of a district court order denying relief that was not sought. Thus, we hold that for this court to have jurisdiction over an аppeal from an order denying a preliminary injunction, the district court’s order must have been entered in response to a request by the appealing party.
See Woodard v. Sage Prods., Inc.,
The plaintiffs argue that even if they did not explicitly request a preliminary injunction, their request for a permanent injunction is sufficient to sаtisfy the requirements of section 1292(a)(1). We disagree. To the extent that they argue that their request for a permanent injunction is sufficient, standing alone, tо invoke this court’s appellate jurisdiction, their argument flies directly in the face of the Supreme Court’s decision in
Switzerland Cheese.
To the extent that they argue thаt their request for a permanent injunction should be read to incorporate a request for a preliminary injunction, they have overlookеd the differences between a preliminary and a permanent injunction. A permanent injunction issues to a party after winning on the merits and is ordinarily grаnted upon a finding of trademark infringement.
See
4 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition
§ 30.01, at 30-5 (3d ed. 1994). A preliminary injunction is extraordinary relief that alters the status quo during the course of litigation. It is granted only after the requesting party has shown that it is likely to succeed on the merits, that it will incur irreparable harm in the absence of such relief, and that the balance of the equities and the public interest favor granting the injunction.
S & R Corp. v. Jiffy Lube Int'l, Inc.,
Even if we were to conclude that we had jurisdiction in this case based on the district
Costs to appellees.
DISMISSED.