RESPONDENT: E. Horne's Market, Inc.
LOCATION: El Paso Natural Gas Co. Headquarters
DOCKET NO.: 42
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the First Circuit
CITATION: 385 US 23 (1966)
ARGUED: Oct 17, 1966
DECIDED: Nov 07, 1966
Facts of the case
Media for Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc.
Audio Transcription for Oral Argument - October 17, 1966 in Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc.
Number 42, Switzerland Cheese Association, Incorporated et al., petitioners versus E. Horne's Market, Incorporated.
Mr. Chief Justice and may it please the Court.
The issue before the Court is a jurisdictional one that has long vexed the Court of Appeals and has caused to deter the event.
It reaches the Court on certiorari to the First Circuit and involves interpretation of that section of the judicial code which states and I quote, “the Courts of Appeal shall have jurisdiction of appeal from interlocutory orders of the District Court refusing injunction.”
The question here is whether this language authorizes an appeal from an interlocutory order which refused a permanent injunction prayed for in a motion for summary judgment.
The language of the statute is plain, simple and unconditional in authorizing appeals from refusals of injunction for all purposes.
We therefore urge the Court to answer the Court in the affirmative.
We do not prevent the issue as an abstract proposition but rather in the context of a cause in regard to which the refusal of the injunction has a far reaching and drastic effect on the business and rights of these petitioners.
Petitioners are the exclusive representatives of the cheese producing community of Switzerland which for many centuries has produced quality cheese which is famous for its excellence throughout the western world including the United States.
This cheese is generally and universally known outside Switzerland as Imported Swiss Cheese and has been marketed under this name by these petitioners for many decades in the United States.
The respondent, a Boston cheese trader, sells as Imported Swiss Cheese an inferior, imitative, less expensive Swiss-type cheese product originating from Finland or Austria without informing the public that the cheese in fact comes from these countries.
This conduct is infringement of our rights.
It dilutes our trade name.
It confuses the public.
It lessens the goodwill which has been built up for the trade name and the cheese and of course it causes financial loss to these petitioners.
Accordingly, by way of summary judgment procedure, we move for a permanent injunction enjoining this respondent from using our trade name on non-Switzerland cheese, unless and that is important, the respondent at the same time indicates the country of origin of the cheese.
In other words, we are not asking for permanent injunction for all purposes.
What we want is that this respondent when he sells Imported Swiss Cheese, he should indicate where the cheese comes from.
The motion was denied without opinion by the District Court for the District of Massachusetts.
We then appeal to the First Circuit pursuant to Section 1292 which as stated before authorizes appeals from interlocutory orders refusing injunction.
When we answered the calendar call, last fall, the chief judge of the First Circuit, dismissed the appeal for want of jurisdiction and refused to hear oral argument.
This Court then granted certiorari.
In dismissing the appeal, the Court of Appeals of the First Circuit made the following statement which is if I may say the key sentence of the opinion.
I quote, “Because of a general policy against piecemeal appeals, statutes permitting interlocutory appeals ought to be construed with some strict rules.
On this basis, whatever may be the exact letter the spirit of Section 1292 is against plaintiff's position.
Well, in reality, does this case involve anything more than the question as to whether this Court is going to review and perhaps overrule a decision of the United States District Court on a motion for summary judgment that the case is not right for summary disposition that there is a genuine issue, a fact which the Court wants to try out.
Is there anything more before us than that?
May it please, Your Honor.
The question which has been presented on certiorari is limited exactly to the proposition Your Honor just outlined.