Opinion
NOT FOR PUBLICATION
Argued and Submitted September 15, 2006 Seattle, Washington
Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding D.C. No. CV-03-02894-MJP
Before: SCHROEDER, Chief Circuit Judge, TALLMAN and BEA, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Playmakers LLC (§LLC§) appeals the district court§s grant of summary judgment in favor of ESPN, Inc. (§ESPN§). The district court granted summary judgment to ESPN on LLC§s claims under federal and state trademark law and the Lanham Act, 15 U.S.C. § 1125(a), that ESPN infringed its registered trademark §Playmakers, § and its claim that ESPN§s alleged acts of trademark infringement constitute unfair business practices in violation of the Washington Consumer Protection Act, Wash. Rev. Code. § 19.86.020. As the parties are familiar with the facts, procedural history, and arguments, we will not recount them here. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
The district court did not err in granting summary judgment to ESPN on the trademark claims. §The test for likelihood of confusion is whether a reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.§ Dreamwerks Prod. Group v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir. 1998) (internal quotation marks and citation omitted). Confusion must be §probable, not simply a possibility.§ Cohn v. Petsmart, Inc., 281 F.3d 837, 842 (9th Cir. 2002) (per curiam) (internal quotation marks omitted). We apply the following factors in determining likelihood of confusion: §(1) strength of the mark; (2) proximity or relatedness of the goods; (3) similarity of sight, sound and meaning; (4) evidence of actual confusion; (5) marketing channels; (6) type of goods and purchaser care; (7) intent; and (8) likelihood of expansion.§ Dreamwerks, 142 F.3d at 1129 (citing AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348§49 (9th Cir. 1979)).
We have considered all the factors and hold that no genuine issues of material fact exist regarding a likelihood of consumer confusion between the two marks. While some factors favor LLC, the care exercised by LLC§s potential clients and the dissimilarity of the services provided weigh far more heavily against a likelihood of confusion. The district court did not err in granting summary judgment to ESPN on the federal and state trademark claims.
LLC§s claim under the Lanham Act relies on the same likelihood of confusion standard. Therefore, the district court did not err in granting summary judgment to ESPN as to the Lanham Act claim.
Because LLC has not established a genuine issue of material fact on the likelihood of consumer confusion, the district court did not err in concluding that LLC has not established a genuine issue of material fact on its claim under the Washington Consumer Protection Act. Nordstrom, Inc. v. Tampourlos, 733 P.2d 208, 210 (Wash. 1987).
AFFIRMED.