                                No. 85-53
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1985




DAVE WARWOOD,
                Plaintiff and Appellant,


JAMES L. HUBBARD AND YELLOWSTONE
OUTFITTERS, INC.,
                Defendants and Respondents.




APPEAL FROM:    District Court of the Eighteenth Judicial District,
                In and for the County of Gallatin,
                The Honorable Joseph B. Gary, Judge presid.ing.

COUNSEL OF RECORD:

         For Appellant:
                Richard C. Conover argued, Bozeman, Montana

         For Respondents:
                Morrow, Sedivy & Bennett; Edmund P. Sedivy argued,
                Bozeman, Montana




                                   Submitted: October 28, 1985
                                    Decided: November 19, 1985



Filed:
           NOV i 9 1985




                                  Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


       Plaintiff-appellant, Warwood, appeals an order of the
Gallatin     County    District   Court      denying    his     motion     for
preliminary    injunction to enjoin defendant-respondent from
using the name "Yellowstone Outfitters" in conjunction with
outfitting services.       We affirm.
       Appellant and respondent both offer outfitting services
near   Yellowstone     Park, and      both   operate under        the name
"Yellowstone     Outfitters."          Documentary       evidence        shows
respondent was using the name in 1979, while appellant's
first documented use was in 1980.            Neither party knew of the
other's use of the name until 1984.
       The appellant raises several issues on appeal.              However,
the only issue we need to address is whether "Yellowstone
Outfitters"     is    primarily   geographically       descriptive, and
therefore not subject to exclusive appropriation as a mark at
common law and        not subject to registra.tion according to
statute.     We conclude that it is primarily geographically
descriptive.
       The   controlling    statute     is   section    30-13-303, MCA.
Under that statute:
       (1) A mark by which the goods or services of any
       applicant for registration may be distinguished
       from the goods or services of others may not be
       registered if it:


       Ie)   comprises a mark that:
       (i) when applied to the goods or services of: the
       applicant, is merely descriptive or deceptively
       misdescriptive of them;
       (ii) when applied to the goods or services of the
       a.ppl.icant is primarily geographically descriptive
       or deceptively misdescriptive of them           . . ..
        The    only   Montana     case     concerning      geographically
descriptive names is Esselstyn v. Holmes                 (1911), 42 Mont.
507, 114 P. 118.          In that case, we held that the District
Court properly refused to enjoin the defendant from using the
trade name "Owl Creek Coal" in the sale of coal mined, in
common with coal mined by the plaintiff, in a region of
country known as the Owl Creek Coal Field.
        This    Court's    reasoning     in    Esselstyn     is   equally
applicable to the present case as well.                  In Esselstyn, we
stated that:
        [N]o one can apply the name of a district or
        country to a well-known article of commerce, and
        obtain thereby such exclusive right to the
        application as to prevent others inhabiting the
        district or dealing in similar articles coming from
        the district from truthfully using the same
        designation.
Esselstyn, 114 P. at 121, quoting Delaware           &   Hudson Canal Co.
v. Cla.rk (1871), 80 U.S. 311, 20 L.Ed. 581.              Owl creek   is a.
geographical name by which a certain Wyoming stream is known.
It is also the name of the region or district through which
the     stream of     that name   flows.       As   such, the name is
descriptive and cannot be appropriated as a trade name or
mark.     Coal is a generic name descriptive in character and
purpose.       It cannot be appropriated. as a. trade name or mark.
Coal denotes the generic article, while Owl Creek denotes the
place or locality of its production, and the two together
denote coal from Owl Creek.              The common law and Montana
sta-tutory law deny exclusive appropriation of such a name.
        Esselstyn is controlling in this case.             Yellowstone is
the name of a river, county, and a National Park.              Outfitters
is a name descriptive of services being offered in the region
around Yellowstone National Park.             Together, the two denote
outfitting services in the Yellowstone area.                   Therefore,
"Yellowstone      Outfitters"          is      primarily             geographically
descriptive.
     Tn     ad.dition, appellant            does    not       fall     within    the
exception to the rule against appropriation of geographically
descriptive names.          That exception is codified at section
30-13-303(2),     MCA,      which     states       that       even    a   primarily
geographically descriptive mark may be registered if it has
become distinctive of         the applicant's goods or services.
Appellant has not shown that the name has become distinctive
of his services.
     Therefore,        we    hold     that         the    name         "Yellowstone
Outfitters" is primarily geographically descriptive and not
subject     to   exclusive      appropriation            at     common     law   or
registration by statute.            The order of the District Court is
affirmed.




We Concur:




            Justices
