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 injunction 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:
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Chief Justice