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. Plaintiffsand Respondents,

AMERICAN FURNITURE WAREHOUSE CO., a ColoradoCorp., d/b/aAMERICAN FURNITURE WAREHOUSE, JAKEJABS & DOROTHY HEITZMAN, Defendants and Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County ofYellowstone, The Honorable Diane G. Barz,Judge presiding.
COUNSELOF RECORD:
ForAppellant: 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, 1985Mr. 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 FurnitureWarehouse Co. and Jake Jabs to permanently enjoin the appel-lants'use of the name "American FurnitureWarehouse" and any variation of the name "American Furniture" in Montana. The DistrictCourt 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 actionwas fully litigated. The respondents later moved that the injunctionbe applied to the appellants' use of the name "American Home FurnishingsCenter." The DistrictCourt found that the name "American Home Furnishings Center" was deceptively similar to "AmericanFurniture"and any attempted
use thereof violated the injunction. Plaintiffs' motion was granted. The defendantsappeal. 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 thename "American Furniture" and therefore within the names precluded by thepreliminary injunction. Two issuesarebefore 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 appellantswere 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 injunctionmay he appealed. Rule 1(b)

## , M.R.App.Civ.P. We do not believe that the order isproperly classified as an injunction in itself and it is thereforenot 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.smerely 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 thepreliminary injunction issued under Rule 5, 

### M.R.App.Civ.P. We hold that the order of March 28, 1985, was not an appealableorder. The second issue presented iswhether theDistrict 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 issueneed nothe decided. Affirmed.

We Concur: *,.;pH PC_- 

### Chief Justice