                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

HANSEN BEVERAGE COMPANY, a               
Delaware corporation, dba
Monster Beverage Company,
                  Plaintiff-Appellee,
                 v.                            No. 06-56390
NATIONAL BEVERAGE CORP., a
Delaware corporation; SHASTA                    D.C. No.
                                              CV-06-05470-ER
BEVERAGES INC., a Delaware
                                                OPINION
corporation; NEWBEVCO INC., a
Delaware corp.; FREEK’N
BEVERAGE CORP., a Delaware
corporation,
             Defendants-Appellants.
                                         
        Appeal from the United States District Court
           for the Central District of California
         Edward Rafeedie, District Judge, Presiding

                   Argued and Submitted
          February 12, 2007—Pasadena, California

                      Filed June 29, 2007

   Before: William C. Canby, Jr. and Sidney R. Thomas,
  Circuit Judges, and Suzanne B. Conlon,* District Judge.

                    Opinion by Judge Canby



  *The Honorable Suzanne B. Conlon, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.

                               7699
7702      HANSEN BEVERAGE v. NATIONAL BEVERAGE


                       COUNSEL

Stephen P. Swinton, Kristine L. Wilkes, Latham & Watkins
LLP, San Diego, California; Elliot H. Scherker, Greenberg
Traurig PA, Miami, Florida, for the defendants-appellants.

John B. Sganga, Jr., Knobbe, Martens, Olson & Bear, LLP,
Irvine, California, for the plaintiff-appellee.
            HANSEN BEVERAGE v. NATIONAL BEVERAGE               7703
                            OPINION

CANBY, Circuit Judge:

   National Beverage Corporation, Shasta Beverages, Inc.,
NewBevCo., Inc., and Freek’N Beverage Corporation (collec-
tively, “National”) appeal the district court’s grant of a pre-
liminary injunction prohibiting National from infringing upon
the trade dress of Hansen Beverage Company’s line of “Mon-
ster” energy drinks. The preliminary injunction restrains
National, inter alia, from selling or marketing its line of
“Freek” energy drinks in their current containers or containers
confusingly similar to Monster’s current trade dress. We
reverse because the district court abused its discretion when
it determined that Hansen is likely to succeed on the merits.

                        BACKGROUND

   Hansen produces and markets the Monster Energy line of
energy drinks. The line consists of a family of four drink
varieties, each packaged in containers bearing a large clawed-
out “M” and the word “MONSTER.”1 Each variety uses a dis-
tinct color combination. The combinations generally consist
of a dark background (either black or grey depending on the
variety) and one bold accent color unique to the variety.

   In August 2006, National began selling its line of “Freek”
energy drinks in the Detroit area. Like the Monster products,
the Freek line of beverages consists of four flavor varieties,
each packaged in containers featuring a dark background and
one of four distinctive accent colors. Unlike the Monster
products, Freek’s packaging prominently features the word
“FREEK” (written in a unique, stylized font) and the distorted
image of a frightening, evil-eyed creature’s face.
  1
    Examples of the competing trade dress may be seen in the Appendix
to this opinion.
7704          HANSEN BEVERAGE v. NATIONAL BEVERAGE
   Soon after National began distribution of its product, Han-
sen brought this action under section 43(a) of the Lanham
Act, 15 U.S.C. § 1125(a), alleging that National’s line of
Freek energy beverages infringes Monster’s trade dress.2 At a
hearing on Hansen’s motion for a preliminary injunction, the
district court issued a tentative ruling in favor of Hansen and
made supporting findings of fact from the bench. In its oral
findings, the court stated that a preliminary injunction was
warranted because Hansen had shown a probability of success
on the merits, irreparable injury, and that the balance of hard-
ships tipped in its favor. The district court subsequently
affirmed its tentative ruling and issued a preliminary injunc-
tion prohibiting National from “manufacturing, distributing,
shipping, advertising, marketing, promoting, selling, or offer-
ing to sell the Freek energy drinks in containers the same or
similar to their current containers or any containers confus-
ingly similar to Plaintiff’s current Monster trade dress.” The
injunction also orders National to “immediately withdraw
from the market any Freek energy drinks in containers having
an appearance the same or similar to their current containers
or any containers confusingly similar to Plaintiff’s current
Monster trade dress.”

   This interlocutory appeal followed. See 28 U.S.C.
§ 1292(a)(1).

                            DISCUSSION

   [1] The central issue in this appeal is whether the grant of
a preliminary injunction constitutes an abuse of discretion
because Hansen failed to demonstrate probable success on the
merits. See Vision Sports, Inc. v. Melville Corp., 888 F.2d
609, 612 (9th Cir. 1989) (a preliminary injunction may be
granted if the moving party has shown probable success on
the merits and the possibility of irreparable harm). In an
  2
   Hansen later added a count for trademark infringement that is not perti-
nent to this appeal.
              HANSEN BEVERAGE v. NATIONAL BEVERAGE                     7705
action for trade dress infringement under section 43(a) of the
Lanham Act, probable success on the merits is established by
a showing that the movant’s trade dress is protectable (non-
functional and distinctive), and the accused product’s trade
dress creates a likelihood of consumer confusion. Clicks Bil-
liards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1258 (9th Cir.
2001).3

   Although National faults the district court for failing ade-
quately to define the elements of Monster’s trade dress, there
appears to be no dispute that Monster’s packaging features at
least some protectable, source-identifying marks.4 The key
issue, therefore, is whether the district court erred in finding
that Freek’s trade dress creates a likelihood of confusion.5

  [2] National contends that the district court erred in finding
a likelihood of confusion because it improperly refused to
give preclusive effect to findings by the District Court for the
District of Nevada in Hansen Beverage Co. v. Rockstar, Inc.,
  3
     Under the Lanham Act, Congress defined “trademark” as being a
“word, name, symbol, or device, or any combination thereof” that identi-
fies a product’s source and distinguishes the product from those of others.
15 U.S.C. § 1127. “In contrast to a trademark, ‘trade dress’ refers to the
‘total image of a product’ and may include features such as size, shape,
color, color combinations, texture or graphics.” Int’l Jensen, Inc. v. Metro-
sound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993) (quoting Vision Sports,
Inc., 888 F.2d at 613). Section 43 of the Act protects both trademarks and
trade dress from infringement, and the elements for proving infringement
are the same for both. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S.
763, 773 (1992).
   4
     For instance, National concedes that Monster’s protectable trade dress
includes, at a minimum, the word “MONSTER” and the “M” logo.
   5
     “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,
Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir. 1998) (internal quota-
tion 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).
7706          HANSEN BEVERAGE v. NATIONAL BEVERAGE
Case No. 2:06-cv-733. In that case, the court found that Mon-
ster’s trade dress is “weak” and “entitled to limited protec-
tion.” Reviewing de novo the district court’s decision not to
apply issue preclusion, see McQuillion v. Schwarzenegger,
369 F.3d 1091, 1096 (9th Cir. 2004), we affirm that ruling.
We conclude that the Nevada district court’s findings are not
entitled to preclusive effect here because they were not neces-
sary to that court’s decision, which was based on a determina-
tion that the trade dress of ROCKSTAR 21 is unlikely to be
confused with Monster’s trade dress.6 See Reyn’s Pasta Bella,
LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir. 2006)
(stating the elements of issue preclusion). See also Eureka
Fed. Sav. & Loan Ass’n v. American Cas. Co., 873 F.2d 229,
233 (9th Cir. 1989) (“ ‘If the decision could have been ratio-
nally grounded upon an issue other than that which the defen-
dant seeks to foreclose from consideration, collateral estoppel
does not preclude relitigation of the asserted issue.’ ” (quoting
Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir.
1985)).

   National also contends that the district court should have
given preclusive effect to an alleged finding by the Nevada
court that the only protectable elements of Monster’s trade
dress are the word “Monster” and a large, claw-like “M.” We
reject this argument because, among other reasons, the
Nevada court’s summary judgment order does not define with
sufficient clarity the scope of Monster’s protectable dress.
  6
    We note that the district court relied on its discretionary authority in
refusing to apply the Nevada court’s factual findings and that it did not
consider whether the elements of issue preclusion are satisfied. Our con-
clusion that the elements are not satisfied makes it unnecessary to consider
National’s argument that application of the doctrine is not discretionary
when it is invoked defensively. See Forest Guardians v. U.S. Forest Serv.,
329 F.3d 1089, 1097 (9th Cir. 2003) (a district court’s decision may be
affirmed on any ground supported by the record, even if not relied upon
by the district court).
              HANSEN BEVERAGE v. NATIONAL BEVERAGE                      7707
   [3] Even without issue preclusion, however, we conclude
that we must reverse because the district court’s finding of a
likelihood of confusion is clearly erroneous. See Vision
Sports, 888 F.2d at 612 (a preliminary injunction order may
be reversed if the district court based its decision on clearly
erroneous findings of fact). In this circuit, the likelihood of
confusion is determined by considering the eight factors iden-
tified in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49
(9th Cir. 1979) abrogated in part on other grounds by Mattel,
Inc. v. Walking Mountain Prod., 353 F.3d 792 (9th Cir. 2003).7
We have cautioned against mechanical application of the
Sleekcraft standard, noting that “[s]ome factors are much
more important than others, and that the relative importance
of each factor will be case-specific.” Brookfield Commc’ns,
Inc. v. West Coast Entm’t Corp., 174 F.3d 1036, 1054 (9th
Cir. 1999); see also Entrepreneur Media, Inc. v. Smith, 279
F.3d 1135, 1141 (9th Cir. 2002) (“[W]e do not decide whether
confusion is likely by considering mechanically the number of
Sleekcraft factors that weigh in favor of either party, or by
giving the same weight to a particular factor from case to
case.”).

   [4] Here, as in many cases, similarity of the marks is the
factor most probative of the likelihood of confusion.8 See
GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th
Cir. 2000) (similarity of the marks is always “a critical ques-
tion in the likelihood-of-confusion analysis”). Although the
district court did not identify any specific similarities between
  7
     These factors are: “1) the strength of the mark; 2) proximity or related-
ness of the goods; 3) the similarity of the marks; 4) evidence of actual con-
fusion; 5) the marketing channels used; 6) the degree of care customers are
likely to exercise in purchasing the goods; 7) the defendant’s intent in
selecting the mark; and 8) the likelihood of expansion into other markets.”
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596,
608 (9th Cir. 2005) (citing Sleekcraft, 599 F.2d at 348-49).
   8
     Similarity is determined by the appearance, sound, and meaning of the
marks when considered in their entirety as they appear in the marketplace.
See GoTo.com, 202 F.3d at 1206.
7708       HANSEN BEVERAGE v. NATIONAL BEVERAGE
the two trade dresses, it found that the products “look quite
similar” and referred generally to their “vast similarities.” We
conclude that the district court’s finding of similarity of
appearance is clearly erroneous.

   [5] The two trade dresses are similar in overall appearance
only to the extent that they both feature “aggressive” graphics
and bold accent colors against dark backgrounds. However,
these elements are widely employed in the crowded energy
drink market and are therefore unlikely to lead to confusion
as to source. See Miss World (UK) Ltd. v. Mrs. America Pag-
eants, Inc., 856 F.2d 1445, 1449 (9th Cir. 1988), abrogated
on other grounds by Eclipse Assocs. Ltd. v. Data Gen. Corp.,
894 F.2d 1114 (9th Cir. 2000) (noting that in a “crowd” of
“similar marks on similar goods” confusion between any two
in the crowd is unlikely because customers “may have learned
to carefully pick out one from the other”) (quoting 1 J.
THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS & UNFAIR
COMPETITION, § 11:26, at 511 (2d ed. 1984)).

   [6] The appearance of the competing trade dress speaks for
itself. Monster products are distinguishable from the other
energy drinks on the market largely because the word “Mon-
ster” and a large “M” are prominently displayed on the cans.
Freek’s trade dress does not feature either of these source-
identifying marks; instead, it displays prominently its own
trade name (“Freek”) along with a distinctive depiction of a
distorted and frightening face (the so-called “Freek Man”).
These very significant differences weigh heavily against a
finding that consumer confusion is likely to result from the
overall look of the packaging. See Bristol-Myers Squibb Co.
v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1045-46 (2d Cir. 1992)
(“[W]e conclude that, although [the trade dresses of Tylenol
PM and Excedrin PM] share many similar elements, the
prominence of the trade names on the two packages weighs
heavily against a finding of consumer confusion resulting
from the overall look of the packaging.”).
              HANSEN BEVERAGE v. NATIONAL BEVERAGE                    7709
   [7] Although the district court’s finding concerning similar-
ity of the marks focused solely on physical appearance, Han-
sen further argues that confusion is likely because the terms
“monster” and “freek” are confusingly similar in meaning and
because the Freek Man is the picture equivalent of a monster.
Regarding the first argument, we conclude that the word
“monster” is simply too indefinite and generalized to support
a finding of consumer confusion resulting from similarity of
meaning between it and “freek.”9

   [8] For similar reasons, we reject Hansen’s argument that
the Freek Man is the picture-equivalent of the word mark
“MONSTER.” Courts have applied the doctrine of word-
picture equivalency only when the word mark and its pictorial
representation are concrete and narrowly focused. In Mobil
Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 257 (2d
Cir. 1987), for instance, the Second Circuit held that the word
mark “Pegasus” was the legal equivalent of Mobil’s flying
horse logo. Similarly, in Beer Nuts, Inc. v. King Nut Co., 477
F.2d 326 (6th Cir. 1973), the Sixth Circuit affirmed the dis-
trict court’s finding that a pictorial representation of nuts and
a stein of beer had the same legal effect as the word mark
“BEER NUTS.” Id. at 329; see also Jockey Int’l, Inc. v. But-
ler, 3 U.S.P.Q.2d 1607 (T.T.A.B. 1987) (picture of a jockey
riding a horse held legally equivalent to word mark “JOCK-
EY”); Squirrel Brand Co. v. Green Gables Inv. Co., 223
U.S.P.Q. 154 (T.T.A.B. 1984) (picture of a squirrel held
   9
     As evidence of similarity of meaning, Hansen has submitted excerpts
from various thesauruses showing that “freak” is synonymous with one of
“monster’s” five generally recognized meanings. Hansen’s sources also
indicate, however, that “monster” is synonymous with such diverse words
as: “giant,” “goliath,” “behemoth,” “colossus,” “mutant,” “fiend,” “devil,”
“demon,” “ogre,” “beast,” “brute,” “leviathan,” and “savage.” The gener-
ality inherent in the word “monster”—as illustrated by this wide-ranging
(and by no means exhaustive) list of synonyms—strongly suggests that
any similarity in meaning between “monster” and “freak” is unlikely to
confuse consumers as to the source of Freek products. It also indicates that
protection of all synonyms of “Monster” would cast a very wide net.
7710        HANSEN BEVERAGE v. NATIONAL BEVERAGE
equivalent to word mark “SQUIRREL”). Here, in contrast,
the word mark “MONSTER” is so broad and ambiguous that
consumers are unlikely to equate it with any particular image
or symbol—much less an image as disembodied and stylized
as the Freek Man. See Fisher Radio Corp. v. Bird Elec. Corp.,
162 U.S.P.Q. 265, 266 (T.T.A.B. 1969) (picture of a swallow-
like bird held not equivalent to word mark “BIRD” because
“the term ‘BIRD’ is a word which broadly encompasses an
extremely wide range of feathered vertebrate . . . .). All told,
when the sight, sound, and meaning of the two marks are
evaluated in combination, it is clear that the marks overall,
and as encountered in the marketplace, are not similar.

   [9] In light of our conclusion that the district court commit-
ted clear error in finding that the marks are similar, our task
is to determine whether the court’s other findings are suffi-
cient to support a determination that consumer confusion is
likely. Beyond similarity of the marks, the district court relied
upon findings that: (1) Monster’s marks are “arbitrary or fan-
ciful” and are therefore “entitled to a higher degree of protec-
tion than merely descriptive or suggestive [marks]”; (2) “the
goods are of the same type and are in direct competition”; (3)
“the channels used to market both products are the same”; (4)
“the goods are inexpensive” and “the average consumer is not
likely to use a great deal of care” in selecting them; (5) Han-
sen has submitted evidence “of [National’s] aggressive
attempts to place its product and advertisements as close to
the plaintiff’s as possible on store shelves and other loca-
tions”; (6) National “has stated its intent to expand the prod-
uct to be marketed nationally”; and (7) “there is evidence of
actual confusion.” We conclude that these findings, accepted
as true, are insufficient to support a finding of a likelihood of
confusion.

  [10] Of the first six findings outlined above, all but the fifth
could apply to any number of competitors in the energy drink
market. In view of the dissimilarity of marks, these findings
shed little light on the likelihood of confusion between these
              HANSEN BEVERAGE v. NATIONAL BEVERAGE                     7711
particular products. Cf. Brookfield Commc’ns, 174 F.3d at
1054 (“Where the two marks are entirely dissimilar, there is
no likelihood of confusion. ‘Pepsi’ does not infringe Coca
Cola’s ‘Coke.’ Nothing further need be said.”). The fifth
finding—that National has attempted to place its products and
advertising close to Hansen’s—is only slightly more proba-
tive. If true, it says little more about the likelihood of confu-
sion than that the products are in direct competition.

   The district court’s reference to evidence of actual confu-
sion gives us some pause. We conclude, however, that the
handful of declarations (some from Hansen employees) sub-
mitted as evidence do not reliably indicate that Freek’s trade
dress is likely to confuse “an appreciable number of people.”10
See Entrepreneur Media, Inc., 279 F.3d at 1151 (infringement
exists only when a mark is likely to “confuse an appreciable
number of people as to the source of the product”) (emphasis
in original); Playboy Enters., Inc. v. Netscape Commc’ns, 354
F.3d 1020, 1026 (9th Cir. 2004) (“actual confusion among
significant numbers of consumers provides strong support for
the likelihood of confusion”) (footnote reference omitted);
Nautilus Group, Inc. v. Icon Health and Fitness, Inc., 372
F.3d 1330, 1338 (Fed. Cir. 2004) (holding that the district
court’s finding of “actual confusion” was improper where
“the relatively small number of calls presented by Nautilus
renders this evidence too unreliable”) (applying Ninth Circuit
law).
  10
     All but one of Hansen’s declarations were submitted for the first time
in connection with its reply. National filed a motion to strike Hansen’s
reply and the attached exhibits on the ground that the new evidence could
have been submitted with Hansen’s moving papers. The district court
denied National’s motion as untimely because it was filed in the late after-
noon on the day before the preliminary injunction hearing. Because the
district court did not abuse its discretion when it denied National’s motion,
we reject National’s argument that the district court may have improperly
considered the new declarations in determining the likelihood of confu-
sion.
7712          HANSEN BEVERAGE v. NATIONAL BEVERAGE
   [11] Because the district court’s finding of a likelihood of
confusion is clearly erroneous, we conclude that the court
abused its discretion in determining that Hansen is likely to
succeed on the merits of its trade dress infringement claim.11
Accordingly, the district court’s grant of a preliminary injunc-
tion is

   REVERSED.




  11
    In light of our conclusion that the issuance of a preliminary injunction
was an abuse of discretion, we need not reach National’s arguments that
the district court erred by: failing to make adequate factual findings to sup-
port its determination that Monster’s trade dress is distinctive and that
there is a “likelihood of confusion”; issuing an injunction that fails to
define the prohibited conduct with sufficient particularity; and excluding
evidence of Hansen’s Complaint to the Patent and Trademark Office in
2003.
