NO. 85-267 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

AMERICAN FURNITURE, INC., a Mont. 

corp., and BORCHERS, INC., a Mont. 

corp. 

Plaintiffs and Respondents, 

AMERICAN FURNITURE WAREHOUSE CO., a 

Colorado Corp., d/b/a AMERICAN FURNITURE 

WAREHOUSE, JAKE JABS & DOROTHY HEITZMAN, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD : 

For Appellant: 

Pedersen & Conrad; Carol Hardy Conrad, Billings, 

Montana 

For Respondent: 

Smith, Baillie & Walsh; ?ames R. Walsh, Great Falls, 

Montana 

Submitted on Briefs: Sept. 26, 1985 

Decided: December 5, 1985 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The respondents, American Furniture, Inc., and Borchers, 

Inc., brought an action in District Court against the 

appellants, American Furniture Warehouse Co. and Jake Jabs to 

permanently enjoin the appel-lants' use of the name "American 

Furniture Warehouse" and any variation of the name "American 

Furniture" in Montana. The District Court issued a temporary 

restraining order and later a preliminary injunction 

enjoining the appellants' use of the name "American 

Furniture," or any variation thereof, in Montana, until the 

action was fully litigated. The respondents later moved that 

the injunction be applied to the appellants' use of the name 

"American Home Furnishings Center." The District Court found 

that the name "American Home Furnishings Center" was 

deceptively similar to "American Furniture" and any attempted 

use thereof violated the injunction. Plaintiffs' motion was 

granted. The defendants appeal. 

We affirm. 

The merits of the preliminary injunction are not before 

this Court. Whether the respondent has a protectable right 

to the name in question and whether the appellant violated 

that right are matters to be decided at a District Court 

hearing on a permanent injunction. The matter before this 

Court at this time concerns the District Court's order that 

the name "American Home Furnishings Center" is deceptivel-y 

similar to the name "American Furniture" and therefore within 

the names precluded by the preliminary injunction. 

Two issues are before this Court: 
1. Whether the order is an appealable order. 

2. Whether the District Court erred in issuing the 

order. 

The respondents are a family corporate business having 

operated in Montana for about 60 years as "American 

Furniture." The appellants are a foreign corporate business 

establishing operations in Montana. The appellants' planned 

use of the name "American Furniture Warehouse" and any 

variation of the name "American Furniture" was enjoined by a 

preliminary injunction on March 18, 1985. At the time that 

this injunction issued the appellants were in the process of 

securing an assumed business name from the Montana Secretary 

of State. The name sought was "American Home Furnishings 

Center." This name was approved and the appellants received 

a certificate for that name from the Montana Secretary of 

State. 

On March 28, 1985, the District Court granted the 

respondents' motion to apply the preliminary in-junction to 

appellants' newly-acquired name on the basis that the use of 

the newly-acquired name violated the injunction. OR April 

26, 1985, the appellants' appealed from that order. 

The first issue presented is whether the District 

Court's order of March 28, 1985, finding a violation of the 

preliminary injunction is an appealable order. A District 

Court's granting or dissolving an injunction or refusal to 

grant or dissolve an in junction may he appealed. Rule 1 (b) , 

M.R.App.Civ.P. We do not believe that the order is properly 

classified as an injunction in itself and it is therefore not 

properly appealable as such under Rule 1 (b) , M.R.App.Ci\r.P. 

We agree with the respondents' argument that the March 28, 

1985, order wa.s merely an interpretation of the preliminary 
injunction therefore an interlocutory order, not appealable. 

We agree that the appellants were barred from appeal 30 days 

from the time the preliminary injunction issued under Rule 5, 

M.R.App.Civ.P. We hold that the order of March 28, 1985, was 

not an appealable order. 

The second issue presented is whether the District Court 

erred in enjoining the appellants' use of the name "American 

Home Furnishings Center" as being deceptively similar to the 

name "American Furniture." Because of our decision on the 

first issue this issue need not he decided. 

Affirmed. 

We Concur: 

*,.;pH 

PC_- 

Chief Justice