CELS ENTERPRISES, INC., a New York corporation; Robert Goldman, an individual, Defendants-counter-claimants-Appellants, v. ROCK AND ROLL RELIGION, INC., a California corporation; Defiance U.S.A., Inc., Plaintiffs-counter-defendants-Appellees; Rock and Roll Religion, Inc., a California corporation; Defiance U.S.A., Inc., Plaintiffs-counter-defendants-Appellees, v. Cels Enterprises, Inc., a New York corporation; Robert Goldman, an individual, Defendants-counter-claimants-Appellants

MEMORANDUM

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.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.

AFFIRMED in part, REVERSED in part, and REMANDED. Each party is to bear its costs on appeal.

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