                                                                              FILED
                             NOT FOR PUBLICATION                              AUG 06 2012

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


CELS ENTERPRISES, INC., a New York               No. 10-55624
corporation; ROBERT GOLDMAN, an
individual,                                      D.C. No. 2:09-cv-05258-R-PLA

                Defendants-counter-claimants
- Appellants,                                    MEMORANDUM*

  v.

ROCK AND ROLL RELIGION, INC., a
California corporation; DEFIANCE
U.S.A., INC.,

                Plaintiffs-counter-defendants
- Appellees.



ROCK AND ROLL RELIGION, INC., a                  No. 10-55976
California corporation; DEFIANCE
U.S.A., INC.,                                    D.C. No. 2:09-cv-05258-R-PLA

                Plaintiffs-counter-defendants
- Appellees,

  v.

CELS ENTERPRISES, INC., a New York
corporation; ROBERT GOLDMAN, an

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
individual,

                Defendants-counter-claimants
- Appellants.


                     Appeal from the United States District Court
                        for the Central District of California
                      Manuel L. Real, District Judge, Presiding

                     Argued and Submitted November 14, 2011
                     Submission Deferred November 15, 2011
                           Resubmitted March 30, 2012
                               Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and SINGLETON,
Senior District Judge.**

      Appellants CELS Enterprises, Inc. and Robert L. Goldman (collectively

CELS) appeal the district court’s order granting summary judgment in favor of

appellees Rock and Roll Religion, Inc. and Defiance U.S.A., Inc. (collectively

Rock and Roll Religion), and the district court’s order awarding attorneys’ fees to

Rock and Roll Religion.

      Summary judgment is generally disfavored in trademark litigation, because

the nature of trademark case analysis is fact intensive. See Fortune Dynamic Inc.

v. Victoria’s Secret Stores Brand Management, Inc., 618 F.3d 1025, 1031 (9th Cir.


       **
             The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.

                                          2
2010). At a minimum, CELS raised material issues of fact regarding the similarity

of the marks, relatedness of the goods, marketing channels, likelihood of expansion

and degree of consumer care factors as articulated in AMF Inc. v. Sleekcraft Boats

(Sleekcraft), 599 F.2d 341, 348-349 (9th Cir. 1979). Therefore, the district court

erred in granting summary judgment in favor of Rock and Roll Religion. See

Fortune Dynamic, 618 F.3d at 1039.

      For the same reason, the district court did not err in denying CELS’ motion

for partial summary judgment. Because CELS failed to present any evidence of

actual confusion and because material issues of fact remain to be decided regarding

the other Sleekcraft factors, summary judgment in favor of either party was

inappropriate. See id.

      The district court has discretion to award attorney’s fees to a prevailing party

under the Lanham Act in exceptional cases. See Classic Media, Inc. v. Mewborn,

532 F.3d 978, 990 (9th Cir. 2008). The district court awarded Rock and Roll

Religion attorneys’ fees pursuant to 15 U.S.C. § 1117(a), reasoning that the case

was exceptional because CELS’ counterclaims were “groundless and pursued in

bad faith. . . .” Because we reverse entry of summary judgment in favor of Rock

and Roll Religion, it is no longer the prevailing party and is not entitled to

attorney’s fees. See Classic Media, 532 F.3d at 990.


                                           3
      AFFIRMED in part, REVERSED in part, and REMANDED. Each

party is to bear its costs on appeal.




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