(concur ring):
I agree with the judgment of the Court reversing and remanding, and I concur in all respects in the able majority opinion of Judge Thomsen.
Since Judge Feinberg’s perceptive dissenting opinion is addressed only to the issue of the appealability of the district court order, I wish to add the following brief observations on that issue, in addition to my complete concurrence in the majority opinion’s treatment of that issue.
If the relief sought below by plaintiff had been cast in the form of a claim for preliminary injunction, rather than for summary judgment, then I take it that the court’s interlocutory order refusing such injunction quite clearly would be appealable under §1292 (a)(1). That being so, it seems to me that the order here under review which finally dismissed certain of plaintiff’s claims for injunctive relief with respect to the alleged infringement of plaintiff’s trademark rights a fortiori is appealable under §1292(a) (1). Although other claims for injunctive relief are still pending, the dismissed claims sought relief on a legal theory distinct from the retained claims. I find the instant case to be indistinguishable from Glenmore v. Ahern, 276 F.2d 525, 545 (2 Cir.), cert. denied sub nom. Tri-Continental Financial Corp. v. Glenmore, 362 U.S. 964 (1960), where our Court held appealable under §1292 (a)(1) an order of a district court which had dismissed one count of a multicount complaint, the dismissed count having sought the same injunctive relief as several other counts but on a distinct legal theory. 276 F.2d at 545-47. In Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2 Cir. 1971), we held that “[b]y granting the motion of [three defendants] to dismiss (footnote omitted), the district court effectively denied at the same time plaintiffs’ motion for a preliminary injunction as against those defendants. (footnote omitted) The .resultant denial of an injunction is appealable under 28 U.S.C. § 1292(a)(1).” 441 F.2d at286. Further in the same opinion, we observed that “[t]hus, the dismissal against [three defendants] operated as a refusal of a distinct and separate claim for an injunction, for which any other relief that might emerge from the case could never adequately substitute.” 441 F.2d at 287. See also Spangler v. United States, 415 F.2d 1242, 1246-47 (9 Cir. 1969); Telechron, Inc. v. Parissi, 197 F.2d 757 (2 Cir. 1952).
In short, the teaching of these cases and others would seem to be that it is the operative facts (whether set forth in one count or multiple counts) giving rise to an enforceable right which constitutes a “claim”, Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2 Cir. 1943), and when such “claim” is squared against the relief granted or withheld by the district court’s judgment or order, that determines whether injunctive relief has been granted or refused for purposes of federal appellate jurisdiction. Just recently, the Supreme Court, responding to a challenge to its appellate jurisdiction to consider a direct appeal under the three-judge district court statute, 28 U.S.C. § 1253 (1970), where the district court did not reach the merits of appellants’ claim for an injunction but dismissed for lack of subject matter jurisdiction, in relevant part held:
“The appellees also note that § 1253 permits appeals to this Court only from orders ‘granting or denying . . . an interlocutory or permanent injunction. . . .’ They argue that since the three-judge court never considered whether an injunction should be granted an appeal should lie to the Court of Appeals. The three-judge court, however, entered a judgment ‘denying all relief sought by plaintiffs.’ We therefore have jurisdiction to consider the claims presented.” Lynch v. Household Finance Corp., 405 U.S. 538, 541 n. 5 (1972).
Finally, I think Judge Feinberg’s dissenting opinion is constructive in flagging the invitation by the author of the *1044majority opinion in Glenmore v. Ahern, supra, to reconsider in an appropriate ease the appealability issue which was decided there by a sharply divided court more than a decade ago. Western Geophysical Co. of America v. Bolt Associates, Inc., 440 F.2d 765, 770-71 n. 4 (2 Cir. 1971). After all, of the five active judges who participated in the Glen-more decision, only one is still in active service and he has tendered the invitation to reconsider. There are now seven other active judges who had nothing to do with Glenmore. I for one would favor such reconsideration in an appropriate case, but I do not believe this is that case. Among other reasons, none of us doubts that the district court here erred in granting partial summary judgment in favor of defendant in view of the genuine issues as to material facts with respect to the secondary meaning of the word “Safari” as disclosed by the affidavits and exhibits which were before the court. And while we differ regarding the appealability of the erroneous order granting summary judgment, I think there is a practical reason for reversing and remanding at this point now that the case is before us: ultimate disposition of this litigation will be speeded up by correcting the district court error now so that in due course when the appeal from the final judgment reaches us there may be at least the possibility of no need for a remand, whereas on the present record there is a certainty of the need for a remand on the issues the district court has summarily decided without a trial.
Accordingly, I concur in all respects in the judgment of the Court and in the majority opinion.