e a claimif "Host's conduct had created a likelihood of confusion as towhether plaintiffs were endorsing Host's product. " 1995 WL115571 at *3. In order to determine whether or not such con- 12361fusion is likely to occur, we referred to a "well settled eightfactor test" to be applied to celebrity endorsement cases,Newton v. Thomason, 22 F.3d 1455, 1462 (9th Cir. 1994).This test requires the consideration of: 1) the strength of the plaintiff's mark;1 2) relatedness of the goods; 3) similarity of the marks; 4) evidence of actual confusion; 5) marketing channels used; 6) likely degree of purchaser care; 7) defendant's intent in selecting the mark; 8) likelihood of expansion of the product lines.Id. at 1462 (citing AMF, Inc. v. Sleekcraft Boats, 599 F.2d341 (9th Cir. 1979)).In Wendt I we concluded that one of the primary factors ofthis test was the `similarity of the marks' and because therewas a disputed issue of material fact as to that issue, summaryjudgment was inappropriate on this claim.[10] On remand, however, the district court simply com-pared the robots with the appellants in the courtroom andawarded judgment because there was "no similarity at all."The district court erred in failing independently to analyzeany of the other relevant factors to determine whether or not_________________________________________________________________1 In a case involving confusion over endorsement by a celebrity plaintiff,`mark' means the celebrity's persona and the strength of the mark refersto the level of recognition the celebrity enjoys. White, 971 F.2d at 1400. 12362there was a likelihood of confusion to consumers as towhether appellants sponsored, approved of, or were otherwiseassociated with the Cheers bars.[11] The Lanham Act's `likelihood of confusion' standardis predominantly factual in nature. Summary judgment isinappropriate when a jury...
