                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1999
                                  ___________

Leslie A. Davis, in his capacity as    *
President of Earth Protector Licensing *
Corporation and Earth Protector, Inc.; *
Earth Protector Licensing Corporation; *
Earth Protector, Inc.,                 *
                                       *
           Plaintiffs - Appellants,    *
                                       * Appeal from the United States
     v.                                * District Court for the District of
                                       * Minnesota.
The Walt Disney Company; Disney        *
Channel; ABC, Inc.,                    *
                                       *
           Defendants - Appellees.     *
                                  ___________

                         Submitted: November 14, 2005
                             Filed: December 5, 2005
                                 ___________

Before WOLLMAN, FAGG, and MELLOY, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

      The plaintiffs appeal the district court’s grant of summary judgment for the
defendants on a claim of trademark infringement.1 We affirm.


      1
         The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
I. Background

       Leslie Davis is the founder and president of an environmental advocacy
organization called Earth Protector, Inc. He owns a registered federal trademark for
the term “Earth Protector” on books, pamphlets, and other printed material. Davis
attempted to register the same mark for the trademark class encompassing television
broadcasts and video services, but he abandoned the application. The appellees, the
Walt Disney Company (“Disney”) and affiliated parties, created a movie called Up,
Up and Away (“Up”) for the Disney Channel in 2000. Up featured a fictional
company named Earth Protectors. The president of the company tried to use computer
software to control the minds of kids in a nefarious plot to take over the world.
Fortunately, he was thwarted by a fast-thinking, but otherwise superpower-less,
teenager who was in a family of superheroes.

II. Standard of Review

        The district court granted summary judgment for the appellees, finding as a
matter of law that no reasonable jury could conclude that the appellees’ use of the
Earth Protector mark would create a likelihood of confusion.2 We review that grant
of summary judgment de novo and view all facts in the light most favorable to the
non-moving party. Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1110 (8th Cir. 2005).
If the district court had made its determination of a likelihood of confusion following
a bench trial, we would review it for clear error. Kemp v. Bumble Bee Seafoods, Inc.,
398 F.3d 1049, 1053-54 (8th Cir. 2005). Because the determination in this case was
made at the summary judgment stage, however, we must conduct an independent
analysis.



      2
       The district court also offered additional bases for its decision. Because we
agree with the district court’s determination regarding the likelihood of confusion, as
discussed in Part III, we need not address these additional bases.

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III. Analysis

        The Lanham Act prohibits the use of a mark in connection with goods or
services in a manner that is likely to cause confusion as to the source or sponsorship
of the goods or services. 15 U.S.C. § 1125(a)(1). The lawsuit underlying this appeal
is not a typical trademark case because the appellees did not affix the appellants’ word
mark to goods or use it to promote products or services. Rather, the appellees simply
used the appellants’ mark in a fictional movie. In this circuit, whether the appellees’
use of the mark is protected by the First Amendment is considered separately from the
question of whether the appellees’ use of the mark creates a likelihood of confusion.
Anheuser-Busch, Inc. v. Balducci Publ’ns, 28 F.3d 769, 773 (8th Cir. 1994). Because
we affirm the district court’s finding of no likelihood of confusion in this case, we
need not analyze the First Amendment issue.

A. The SquirtCo Factors

       In SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir. 1990), we
articulated the factors to be considered in evaluating a likelihood of confusion. These
can be enumerated as: 1) the strength of the plaintiff’s mark; 2) the similarity between
the plaintiff’s and defendant’s marks; 3) the degree to which the allegedly infringing
product competes with the plaintiff’s goods; 4) the alleged infringer’s intent to
confuse the public; 5) the degree of care reasonably expected of potential customers,
and 6) evidence of actual confusion. “[W]e use [these factors] as a guide to determine
whether a reasonable jury could find a likelihood of confusion. Factual disputes
regarding a single factor are insufficient to support the reversal of summary judgment
unless they tilt the entire balance in favor of such a finding.” Duluth News-Tribune
v. Mesabi Publ’g Co., 84 F.3d 1093, 1096 (8th Cir. 1996).




                                          -3-
1. Strength of the Mark

      The mark at issue is “Earth Protector.” The appellants used this mark in
connection with educational materials, t-shirts, and occasional broadcasts of a local
cable-access show called “The Earth Protector Show.” Because the mark is used in
conjunction with the products and services of an environmental advocacy
organization, we find that the mark is “descriptive.” See id. (finding the term “Duluth
News-Tribune” to be descriptive as the mark for a newspaper because “[t]he words
convey meaning too directly to be suggestive, yet are too specific to be generic”). A
descriptive mark is “the weakest protectable mark.” Cellular Sales, Inc. v. Mackay,
942 F.2d 483, 486 (8th Cir. 1991). As such, we find that the first SquirtCo factor
weighs in favor of the appellees.

2. Similarity Between the Marks

      This factor weighs in favor of the appellants. The appellees used the term
“Earth Protectors,” which is almost identical to the appellants’ Earth Protector mark.3

3. Competitive Proximity of the Goods

       We reject the appellants’ argument that competitive proximity exists simply
because the appellants and appellees both offer educational and informational
services. The appellees’ only use of the mark in question was in a fictional children’s
movie that aired only on the Disney Channel. Thus, that movie is the product to
which we must apply the SquirtCo factors. See Ocean Bio-Chem, Inc. v. Turner
Network Television, Inc., 741 F. Supp. 1546, 1557 (S.D. Fla. 1990) (finding that when
the defendant used a term similar to the plaintiff’s mark as the name of a company in

      3
       We do note, however, that while the appellees used an almost identical mark,
they used the mark in a very different manner than the appellants. This could reduce
the probability of consumer confusion.

                                         -4-
its fictional movie, the movie was the product to be compared to the plaintiff’s goods).
If products are “wholly unrelated” this factor weighs against a finding that confusion
is likely. Kemp, 398 F.3d at 1056. If the products are closely related, and it is
reasonable for consumers to believe the products come from the same source,
confusion is more likely. Id. We find that a movie designed for children’s
entertainment that airs on a national children’s network is not so similar to an
infrequently broadcast cable-access environmental advocacy television program that
consumers are likely to believe the two products came from the same source.
Accordingly, this factor also weighs in favor of the appellees.

4. Intent to Confuse the Public.

       This factor weighs in favor of the appellees as there is no evidence in the record
that the appellees intended to confuse the public. Although proof of bad intent is not
required for success in a trademark infringement or unfair competition claim, the
absence of such intent is a factor to be considered. See Caterpillar Inc. v. Walt Disney
Co., 287 F. Supp. 2d 913, 919 (C.D. Ill. 2003) (stating that the absence of bad intent
on the part of the defendant “troubles the Court”).

5. Degree of Care Expected of Consumers

       We find that this factor weighs in favor of neither party. In a typical trademark
case, we would consider the degree of care that consumers would use in purchasing
the product that bears the allegedly infringing mark. In this case, however, there are
no “purchasers” because Up was not sold as a video or DVD. Although subscribers
to the Disney Channel can be considered consumers for the purpose of this analysis,
the appellants’ mark does not appear in the movie’s title, and there is no evidence that
the appellees used the mark in conjunction with advertising or promotion for the
movie. As such, consumers would not even be aware of the use of the mark until they
viewed the film or were told about its content.

                                          -5-
6. The Evidence of Actual Confusion

        We find that this factor weighs in favor of the appellants. However, its
importance is reduced due to the characteristics of the evidence put forth to establish
actual confusion. The appellants’ evidence of actual confusion comes from eleven
affidavits, but only two of the affiants saw Up as it was broadcast on the Disney
Channel. The rest were given a copy of the movie by Davis. Confusion created by
the plaintiff is not evidence of actual confusion in the marketplace. See Vitek Sys.,
Inc. v. Abbot Labs., 675 F.2d 190, 193-94 (8th Cir. 1982) (holding that the “district
court was not required to give weight to confusion created by [the plaintiff]”).
Additionally, some of the affiants do not express their own confusion, but rather state
a concern that others might be confused.4 However, we must consider these affidavits
in the light most favorable to the appellants. As such, we find there is some evidence
of actual confusion.

B. The Appropriateness of Summary Judgment

       When “a trademark dispute centers on the proper interpretation to be given to
the facts, rather than on the facts themselves, summary disposition is appropriate.”
Duluth, 84 F.3d at 1099. The appellants argue that, because there is evidence of
confusion, we must overturn the grant of summary judgment. This argument fails.
See id. (granting summary judgment for the appellees despite finding the plaintiff
established an incident of actual confusion). “Though evidence of actual confusion
may be the best evidence of likelihood of confusion, it is not conclusive of its


      4
         Because it is inappropriate to assess the credibility of an affiant at the
summary judgment stage, we do not consider the appellees’ arguments that the
affidavits should be discounted because most of them were authored by supporters of
Earth Protector, Inc. and/or Davis’s friends and family members. We likewise do not
consider the fact that several of the affiants expressed their confusion in verbatim
accounts mirroring the language of the Lanham Act.

                                         -6-
existence.” Woodsmith Publ’g Co. v. Meredith Corp., 904 F.2d 1244, 1249 (8th Cir.
1990) (affirming a grant of summary judgment for the defendant despite the plaintiff
establishing a “few instances” of actual confusion).

       As courts have repeatedly noted, “the ‘core element’ of trademark infringement
law is ‘whether an alleged trademark infringer’s use of a mark creates a likelihood that
the consuming public will be confused as to who makes what product.’” Brother
Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir. 2003) (quoting Thane Int’l, Inc.
v. Trek Bicycle Corp, 305 F.3d 894, 901 (9th Cir. 2002)). Because Disney neither
affixed the appellants’ mark to any physical copies of the movie nor used the mark in
promoting the film, it is clear that consumers would not be confused as to the source
of the film. Nonetheless, the appellants contend that even if viewers of Up were not
confused as to who produced the movie, they may still mistakenly have thought Earth
Protector, Inc. was affiliated with the movie. The Lanham Act does prohibit the
unauthorized use of a mark in commerce if it would cause confusion as to whether
there is an “affiliation, connection, or association” with another person. 15 U.S.C. §
1125(a)(1)(A). However, the manner in which the appellees used the mark makes it
unlikely that anyone would suspect sponsorship by the appellants. As the appellants
note, the Earth Protectors company depicted in Up commits “dastardly deeds.” One
of the appellants’ affidavits goes so far as to say that the movie portrays Earth
Protectors employees as “terrorists, kidnappers, and robbers.” Because the movie’s
depiction of the company using the mark is resoundingly negative, it is unlikely that
viewers will assume that the real Earth Protector, Inc. was a sponsor of the movie or
that Earth Protector, Inc. and Disney are otherwise affiliated.5
IV. Conclusion

       The majority of the SquirtCo factors weigh against a likelihood of confusion
in this case. Furthermore, the circumstances surrounding the appellees’ use of the

      5
       While this depiction arguably supports the appellants’ previously dismissed
trademark dilution and defamation claims, these claims are not part of this appeal.

                                          -7-
mark make confusion less likely than in a traditional trademark infringement action.
Because we agree that no reasonable jury could find a likelihood of confusion in this
case, we affirm the district court’s grant of summary judgment for the appellees.
                        ______________________________




                                         -8-
