NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
E. & J. GALLO WINERY, a California No. 14-16949
corporation,
D.C. No.
Plaintiff-Appellee, 1:13-cv-00770-AWI-SAB
v.
GRENADE BEVERAGE, LLC, a MEMORANDUM*
California limited liability company,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted November 14, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and KOZINSKI and FRIEDLAND, Circuit
Judges.
1. We look to several factors to determine whether there is a likelihood
of confusion in a trademark case: (1) similarity of the conflicting designations; (2)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
relatedness or proximity of the two companies’ products or services; (3) strength of
the plaintiff’s mark; (4) marketing channels used; (5) degree of care likely to be
exercised by purchasers in selecting goods; (6) the defendant’s intent in selecting
its mark; (7) evidence of actual confusion; and (8) likelihood of expansion in
product lines. Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d
1036, 1053–54 (9th Cir. 1999) (referring to the factors described in AMF Inc. v.
Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979)). “Although some
factors—such as the similarity of the marks and whether the two companies are
direct competitors—will always be important, it is often possible to reach a
conclusion with respect to likelihood of confusion after considering only a subset
of the factors.” Id. at 1054. We review a lower court’s evaluation of the Sleekcraft
factors for clear error. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1355
& n.4 (9th Cir. 1985) (en banc).
The district court properly accepted the magistrate judge’s determination
that at least five of the Sleekcraft factors favored E. & J. Gallo Winery (“Gallo”).
The marks “Gallo” and “El Gallo” are similar because they share a dominant word:
Gallo. See La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867,
876 (9th Cir. 2014) (finding that “La Quinta” and “Quinta Real” were similar
marks because they shared the word “Quinta”); E. & J. Gallo Winery v. Gallo
page 3
Cattle Co., 967 F.2d 1280, 1291–92 (9th Cir. 1992) (affirming the district court’s
finding that “Gallo” and “Joseph Gallo” were similar marks because “Gallo” was
the dominant element in both marks). Additionally, the strength of the Gallo mark
and the fact that both products compete in the beverage industry favor Gallo.
Similarly, the fact that both products are sold at a low price point supports finding
a likelihood of confusion. See Gallo Cattle Co., 967 F.2d at 1293 (explaining that
“consumers tend to exercise less care when purchasing lower cost items”). And
Gallo also introduced evidence of actual confusion. See La Quinta Worldwide,
762 F.3d at 876 (“Evidence that use of the two marks has already led to confusion
is persuasive proof that future confusion is likely.”).
2. Grenade argues that the evidence of actual confusion is inadmissible
and, in any event, inapposite because it’s merely anecdotal evidence that doesn’t
show actual consumer confusion. Even if we assume that Grenade is right, “the
failure to prove instances of actual confusion is not dispositive.” Id. (quoting
Sleekcraft, 599 F.2d at 352).
AFFIRMED.