E. & J. Gallo Winery, a California Corporation, Plaintiff-Counter-Defendant-Appellee v. Gallo Cattle Company Michael D. Gallo Joseph Gallo, Defendants-Counter-Claimants-Appellants v. Ernest Gallo Julio Gallo, Counter-Defendants-Appellees

Defendant/Counterclaimant Joseph E. Gallo ("Joseph") appeals. Plaintiff/Counterdefendant E. & J. Gallo Winery ("the Winery"), owned by Joseph's older brothers Ernest and Julio Gallo, initially brought a trademark infringement action against Joseph for the use of the name GALLO on retail packages of cheese. Joseph counterclaimed against the Winery and Ernest and Julio, asserting that he had inherited a one-third ownership interest in the Winery (and thus its trademarks) from their parents who died in 1933. The district court granted summary judgment in favor of Ernest and Julio on the counterclaims, granted judgment following a bench trial in favor of the Winery on the trademark claims, and permanently enjoined Joseph from using the GALLO name as a trademark on retail packages of cheese and in advertisements.

On appeal, Joseph seeks reversal of the judgments, but challenges as well the scope of the injunction. He also appeals the denial of his motion for a new trial, arguing that Judge Coyle should have disqualified himself. We AFFIRM, but modify the scope of the injunction.

This lawsuit arises out of a tortuous family history apparently involving sibling rivalry on a grand scale. Because Joseph's counterclaims concern his parents' estates, the relevant facts date back nearly a century.

I. The Rise of the Gallo Family, the Establishment of the Winery, and Ernest and Julio's Guardianship of Joseph

The individual parties to the action, Ernest, Julio, and Joseph, are the children of Joseph Gallo ("Joseph Sr.") and Assunto ("Susie") Bianco, immigrants to Northern California from Italy in the early 1900s. Joseph Sr. and Susie married in 1908. Ernest was born in 1909, Julio in 1910, and Joseph in 1919. Following their marriage until the advent of Prohibition in 1919, Joseph Sr. and Susie operated various boarding-houses and saloons, in connection with which they served and sold wine purchased from other California wine dealers. Evidently they stenciled the family name GALLO on the ends of the wine kegs, although they did not make the wine themselves. Throughout the 1920's, the family purchased a series of vineyards, where they grew their own wine grapes, bought wine grapes from other local growers, and shipped the grapes to the midwest and the east coast, where customers made wine with them for their home use under an exception to Prohibition. Ernest and Julio became involved in this shipping business during the mid- to late-1920s. While Joseph Sr. did have a brush with the law for bootlegging during Prohibition, there is no other evidence that he and Susie sold wine after 1919.

The Great Depression caused the grape business to suffer. Prices dropped; the 1932 season was a financial disaster for Joseph Sr. and Susie. On June 21, 1933, Joseph Sr. took Susie's life and his own.

In a holographic will, Susie left each son a one-third interest in her estate. On April 4, 1935, the probate court approved the first and final account of Susie's estate, and entered a decree distributing a one-third interest in her stock and real property holdings to each son. The accounting for Susie's estate listed no wine business nor assets of a wine business.

Joseph Sr. died intestate. Ernest obtained a court order authorizing him to continue Joseph Sr.'s business, described as "that of raising grapes and other crops and farming and selling produce." On April 29, 1935, the probate court approved Ernest's second and final account of Joseph Sr.'s estate, and entered a decree distributing a one-third interest in the remaining assets of the estate to each son. The account did not list any wine business or assets of a wine business, but it did list "E. & J. Gallo Winery" as a creditor of the estate.

"E. & J. Gallo Winery" refers to the partnership Ernest and Julio formed after their parents' deaths. The brothers had obtained a license to establish a bonded winery which could lawfully produce wine for medicinal purposes during Prohibition. Prohibition ended on December 5, 1933, and on that day the E. & J. Gallo Winery began shipping wine out of Modesto in barrels marked GALLO.

During all of this, Joseph was still a child. He was only 13 years old when his parents died, and Ernest and Julio did not make him a partner in the Winery. He lived with his brothers, who became his legal guardians by order of the probate court on February 19, 1934. Ernest and Julio did not conduct a model guardianship. They filed no inventory of the guardianship estate at its inception, nor did they file any annual accountings during the ensuing years of the guardianship. In 1936 they obtained an order from the probate court authorizing them to sell the shares of stock Joseph had inherited from Susie, but then loaned the proceeds to the Winery without the court's authorization. Joseph attained majority on September 11, 1940, and on June 20, 1941, Ernest and Julio filed a first and final account of the guardianship.

A month after Ernest & Julio filed the account, Joseph and his counsel filed objections, claiming, in addition to the proceeds of Joseph's stock, the sum of $25,000 as his portion of the profits generated by the Winery through unauthorized investment of guardianship funds. On July 2, 1941, the probate court entered its decree, adopting Ernest and Julio's account, as supplemented by a payment from the Winery to Joseph of $20,000. This sum was declared to be "in full and complete settlement of" Ernest and Julio's liability arising from their use of Joseph's capital for investment in the Winery.

II. The Gallo Brothers Develop their Businesses

Ernest and Julio continued to develop their wine business through the 1930s, selling the wine in barrels and tank cars to regional bottlers, who in turn sold the wine under their own trademarks. It was not until 1940, when the Winery began its own bottling operations, that the GALLO label was seen by the consuming public. In 1942, the Winery obtained its first registered trademark including the word GALLO. The following year Ernest and Julio moved the bottling operations to Modesto, and by the early 1960s, they had established distribution of the Gallo brand in all major U.S. markets. Today, following several decades of extensive advertising and promotion, GALLO wine has become the best-selling brand in the country.

Including its first trademark in 1942, the Winery has acquired eleven different registered trademarks containing GALLO. Ernest and Julio themselves registered all but one of the eleven. The exception is a trademark initially obtained by a company called Gallo Salame that developed in the late 1940s independently from the Gallo family--nobody in the company bore the name of Gallo. Gallo Salame initially sold salami and other prepared meat products to the service delicatessen trade, but in 1959 it began selling its products directly to consumers. By 1970 Gallo Salame was selling combination packs of sliced cheese and salami or pepperoni, and that year it obtained a registered trademark consisting of a shield with the word "Gallo" in script, together with a depiction of the Golden Gate Bridge and a cable car. In 1979, the Winery sued Gallo Salame for trademark infringement and dilution, and in 1983 the parties settled, with Gallo Salame assigning its registered trademark to the Winery as part of the settlement. The settlement also licensed the GALLO SALAME mark back to Gallo Salame, which continues to manufacture and sell its products under the mark.

Joseph's involvement with the Winery was limited. He lived and worked with his brothers on the ranches and in the Winery until he entered military service in 1942. Four years later, Joseph returned to manage several of the Winery's ranches. At some point during the early development of the Winery, Ernest and Julio invited Joseph to become a partner, but he declined.

Joseph managed the Winery's ranches until 1967, during which time he purchased and farmed several pieces of land, including vineyards and a dairy. In many of these ventures he used his name, "Joseph Gallo", as a trade name. He sold grapes from his vineyards--many to the Winery--under the trade name "Joseph Gallo Vineyards", and he operated his ranches under similar trade names incorporating his own name. In 1955, he established the "Gallo Cattle Company", a partnership, and he proceeded to raise and sell dairy cattle on the land not dedicated to the vineyards. In the late 1970s, the Gallo Cattle Company established a large dairy, and in 1983, it entered the cheese business.

Joseph's original intention in entering the cheese business was to sell cheese in large blocks to commercial purchasers, who would then repackage the cheese for consumer distribution. However, in 1984, Joseph began distributing consumer size packages of cheese for the retail market, labeled with a trademark consisting of his name, "Joseph Gallo", and a pastoral scene of cows and a dairy barn.

Later that year, Ernest and Julio learned that Joseph was selling retail cheese labeled JOSEPH GALLO, and Ernest told him that this infringed the Winery's trademarks and violated a prior oral commitment Joseph had given not to use the GALLO name on his products. The Winery also notified Gallo Salame, which insisted that the Winery either stop Joseph from using the mark or get him to enter into a licensing agreement with the Winery. For two years, the Gallo brothers negotiated unsuccessfully. Finally, on April 17, 1986, the Winery filed its complaint against Joseph, the Gallo Cattle Company, and Michael D. Gallo, Joseph's son and general partner of Gallo Cattle (collectively, "Joseph" or "defendants").

The Winery's complaint included claims for trademark infringement, trademark dilution, and unfair competition, and sought an injunction preventing Joseph from marketing, advertising, selling, or distributing cheese bearing any trademark containing the word GALLO. In his answer, Joseph raised twelve affirmative defenses and brought several counterclaims against the Winery and Ernest and Julio. He asserted a constructive trust, arguing that Joseph Sr. and Susie had founded the Winery, and that he therefore had inherited a one-third interest in it. He also sought damages from Ernest and Julio for breach of fiduciary duty, deceit, and constructive fraud in the conduct of the guardianship.

On June 6, 1988, after extensive and apparently contentious discovery, the district court heard argument on the parties' cross-motions for summary judgment. On August 29, 1988, Judge Price issued his memorandum decision granting the Winery's motion for summary judgment on Joseph's counterclaims. He found Joseph's claims barred by res judicata, based on the decrees issued by the various probate courts after Joseph Sr. and Susie died and upon the termination of Joseph's guardianship. He also held that Joseph had presented no evidence that Ernest and Julio had practiced fraud on the probate court. Judge Price denied Joseph's motion for summary judgment on the Winery's trademark claims, and set the matter for trial beginning November 15, 1988.

On November 1, the court denied Joseph's motions for certification and stay pending appeal, and on November 10, Joseph moved to have Judge Price recuse himself pursuant to 28 U.S.C. § 455 because of his alleged personal friendship with one of the Winery's directors. On November 14, without conceding the necessity for his disqualification, Judge Price transferred the case to Judge Coyle.

Following a seventeen-day bench trial on the Winery's claims from November 22 through December 28, 1988, Judge Coyle ruled for the Winery and issued an order on June 19, 1989 permanently enjoining Joseph from using the GALLO mark on retail cheese packages and from using the GALLO name in advertising. Among Joseph's post-trial motions was a motion for new trial, based primarily on the assertion that Judge Coyle should have recused himself under 28 U.S.C. § 455 because he had been a partner in the law firm that represented the Winery as local counsel in its trademark suit against Gallo Salame. On August 4, Judge Coyle denied the motion, concluding that the motion for recusal was untimely and also lacked merit.

Joseph appeals Judge Price's grant of summary judgment to the Winery on his counterclaims, Judge Coyle's judgment for the Winery on the trademark claims, and Judge Coyle's denial of his motion for a new trial. Joseph also challenges the permanent injunction issued by Judge Coyle as fatally ambiguous, overbroad and in violation of the first amendment.

The district court had jurisdiction over the Winery's trademark infringement claim under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1337, & 1338, pendant jurisdiction over the Winery's state claims of trademark dilution and unfair competition, and ancillary jurisdiction over Joseph's counterclaims. This court's jurisdiction derives from 15 U.S.C. § 1121 and 28 U.S.C. § 1291.

I. Summary Judgment for the Winery on Joseph's Counterclaims

Joseph contends that Judge Price erred in granting summary judgment for the Winery on his counterclaims. He argues that the evidence he presented to the district court, considered in the light most favorable to him, raised genuine issues of material fact as to his asserted one-third interest in the Winery. He cites evidence that the Winery was an outgrowth of his father's business and thus part of his father's estate, in which he inherited a one-third interest.1 However, the district court granted the Winery's summary judgment motion not on the ground that Joseph had presented no genuine issue of material fact, but on the ground that res judicata barred his claims. We review both summary judgment and res judicata determinations de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986) (summary judgment); Guild Wineries and Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir.1988) (res judicata ); Blasi v. Williams, 775 F.2d 1017, 1018 (9th Cir.1985) (res judicata ).

In finding the counterclaims to be barred by res judicata, the district court focused primarily on the probate court's guardianship decree. However, the decrees of distribution in the estates of Joseph Sr. and Susie are also relevant. Under California law, an order settling an executor's account generally binds "all the parties interested in the estate, including minors who were not represented at [the probate hearing] by a guardian." Carr v. Bank of America Nat'l Trust & Sav. Ass'n, 11 Cal.2d 366, 79 P.2d 1096, 1099 (1938); see also Cal.Prob.Code 11605 (West Supp.1990) (order of probate court, including decree of distribution, "binds and is conclusive as to the rights of all interested persons"). Both the initial and final accountings filed by Ernest in his capacity as executor of Joseph Sr.'s estate identified the Winery as a creditor of the estate, not as an asset. The probate court's approval of the accountings therefore necessarily determined that the Winery was not part of the estate inherited by the Gallo brothers. See In re Estate of Simonton, 183 Cal. 53, 190 P. 442, 444 (1920) (final order of settlement held conclusive upon heirs as to property not inventoried as asset of estate yet known by heirs to exist).

An order of settlement also "conclusively negatives the charge of mismanagement, negligence or fraud on the part of the ... executor." Carr, 79 P.2d at 1101. However, where the order has been obtained by extrinsic fraud perpetrated by the executor, the order can be set aside. Estate of Sanders, 221 Cal.Rptr. 432, 710 P.2d 232, 235, (1985); see also Lazzarone v. Bank of America, 181 Cal.App.3d 581, 226 Cal.Rptr. 855, 863 (1986) (same rule applied to administration of testamentary trust). Extrinsic fraud essentially entails preventing a party "from presenting all of his case to the court," as opposed to defrauding the party with respect to the substantive rights being adjudicated at a proceeding. Sanders, 710 P.2d at 236 (quoting United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878)). The classic example of extrinsic fraud is where "the aggrieved party is kept in ignorance of the proceeding or is in some other way induced not to appear." Sanders, 710 P.2d at 236. Fraudulent concealment of assets by an administrator or guardian also constitutes extrinsic fraud. Lataillade v. Orena, 91 Cal. 565, 27 P. 924 (1891), Simonton v. Los Angeles Trust & Sav. Bank, 192 Cal. 651, 221 P. 368 (1923).

The same general principles apply to a probate court's order approving a final accounting of a guardianship:

The established rule is that the final account of a guardian, when settled and approved, and not attacked by appeal or other proper proceeding, is res judicata and conclusive even against the ward.

Adams v. Martin, 3 Cal.2d 246, 44 P.2d 572, 573 (1935); see also Guardianship of Naccarato, 195 Cal.App.2d 118, 15 Cal.Rptr. 261, 262 (1961). Extrinsic fraud is, again, an exception to the rule of conclusiveness. Barker v. Carver, 144 Cal.App.2d 487, 301 P.2d 307, 310 (1956); cf. Adams, 44 P.2d at 573 (distinguishing cases involving extrinsic fraud).

It is therefore clear that in order to avoid a res judicata determination based on the three probate decrees, Joseph must demonstrate that Ernest and Julio engaged in extrinsic fraud. The district court ruled that Joseph failed to establish any facts that evidenced extrinsic fraud. Joseph attended the guardianship hearing and was represented by counsel, who filed on his behalf objections to the account filed by Ernest and Julio. There is no suggestion that any assets were concealed from Joseph. The Winery was identified as a creditor in Ernest's final accounting of Joseph Sr.'s estate. More importantly, the Winery was the very focus of the hearing on the termination of Joseph's guardianship. The probate decree required a $20,000 payment to Joseph, "represent[ing] earnings realized by said guardians in the conduct of their business under the name of E. & J. Gallo Winery...." Implicit in this decree is a determination that the Winery was the business of Ernest and Julio, not part of Joseph Sr.'s estate. Joseph had the opportunity at this hearing to claim a one-third interest in the Winery but evidently did not do so. See Getty v. Getty, 187 Cal.App.3d 1159, 232 Cal.Rptr. 603, 610 (1986) (res judicata applies to matters that were actually raised or could have been raised).

In the absence of any showing of extrinsic fraud, we affirm the district court's conclusion that Joseph's counterclaims, which seek to upset probate decrees of more than fifty years' standing, are barred by res judicata. We need not reach the Winery's alternative ground of laches.

II. Judgment for the Winery on Its Trademark Claims

The district court held that Joseph's use of his name on retail packages of cheese infringed the Winery's trademarks and constituted unfair competition under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a).2 The court also held for the Winery on its state claim of trademark dilution, Cal.Bus. & Prof.Code § 14330. Joseph challenges the district court's judgment on several grounds, which are considered in turn.

A. Judicial reluctance to enjoin use of a personal name

Joseph first contends that the district court erred in failing to consider an established "judicial reluctance" to enjoin the use of a personal name as a trademark. While recognizing that one has no absolute right to use one's personal name as a trademark, he nevertheless contends that the district court should have shown a greater reluctance to find that his use of his own name constituted trademark infringement.

It is true that the Ninth Circuit has expressed a "reluctan[ce] to preclude an individual's business use of his own name when no attempt to confuse the public has been made." Friend v. H.A. Friend and Co., 416 F.2d 526, 531 (9th Cir.1969), cert. denied, 397 U.S. 914, 90 S.Ct. 916, 25 L.Ed.2d 94 (1970). However, as this language from Friend indicates, the reluctance does not extend to cases where there has been an attempt to confuse the public. Robi v. Five Platters, Inc., 918 F.2d 1439, 1445 (9th Cir.1990). In fact, Friend itself upheld a ruling of trademark infringement and an injunction against use of a personal name by a junior user of the FRIEND mark who had "deliberately, vigorously, and successfully confused purchasers." Id. As for Joseph's intent in putting his name on the retail cheese packages, the district court found that he knew that the Winery would object to his use of the GALLO name and that he intended to capitalize on its reputation and selling power. Given these findings, the district court's determination of trademark infringement was fully consistent with Friend.

Even where a junior user lacks an intent to capitalize on another's trademark, use of an infringing personal name may still be limited by an injunction carefully tailored to balance the interest in using one's name against the interest in avoiding public confusion. Sardi's Restaurant Corp. v. Sardie, 755 F.2d 719, 725 (9th Cir.1985) (citing 1 J. McCarthy, Trademarks and Unfair Competition § 13:3(D) (2d ed. 1984)); see also Basile, S.p.A. v. Basile, 899 F.2d 35, 39 (D.C.Cir.1990); Taylor Wine Co. v. Bully Hill Vineyards, Inc., 569 F.2d 731, 735-36 (2d Cir.1978). In other words, as long as the scope of the district court's injunction reflects a consideration of the judicial reluctance to enjoin use of a personal name, the court has acted properly. The district court's injunction, as modified in Section IV, infra, prohibits Joseph from using the words GALLO or JOSEPH GALLO as a trademark for retail sale of cheese or in audible advertisements. However, the injunction explicitly permits the use of JOSEPH GALLO as a trademark on wholesale packages of cheese, and permits the use of "Gallo Cattle Co." and "Joseph Gallo Farms" as trade names. It further permits the trade names or Joseph's signature to appear in advertisements. It is silent as to products other than cheese. By limiting the use of Joseph's name only to the extent necessary to avoid public confusion, the district court demonstrated the appropriate reluctance to enjoin all use of a person's name.3

Joseph claims that the Winery lacks a valid ownership interest in the GALLO SALAME trademark because the agreement settling the Winery's infringement suit against Gallo Salame represented an invalid assignment of the mark. Without valid ownership of the GALLO SALAME mark, Joseph further contends, the Winery's wine marks alone cannot support the district court's judgment, because wine and cheese are different products.

Under its settlement with Gallo Salame in 1983, the Winery received an assignment of the GALLO SALAME mark, which it then licensed back to Gallo Salame for its continued use on combination meat and cheese packages. Joseph argues that this constituted an invalid assignment in gross, because the assignment did not transfer the goodwill or tangible assets of Gallo Salame. Assignments of trademarks in gross are traditionally invalid. "[T]he law is well settled that there are no rights in a trademark alone and that no rights can be transferred apart from the business with which the mark has been associated." Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 842 (9th Cir.1969), criticized on other grounds, Golden Door, Inc. v. Odisho, 646 F.2d 347 (9th Cir.1980). It is not necessary that the entire business or its tangible assets be transferred; it is the goodwill of the business that must accompany the mark. Money Store v. Harriscorp Fin., Inc., 689 F.2d 666, 676 (7th Cir.1982). As the Lanham Act states the principle, a mark is "assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill of the business connected with the use of and symbolized by the mark." 15 U.S.C. § 1060. The purpose behind requiring that goodwill accompany the assigned mark is to maintain the continuity of the product or service symbolized by the mark and thereby avoid deceiving or confusing consumers. 1 J. McCarthy, Trademarks and Unfair Competition § 18:1(C) (2d ed. 1984).

The district court made a factual finding that goodwill had been assigned along with the mark GALLO SALAME. This finding rested on two facts. First, Gallo Salame gave to the Winery information "sufficient to enable [it] to continue the lure of business Gallo Salame had been conducting under the Gallo mark." This established the continuity that trademark law seeks to extend to the public. Second, the mark was transferred as part of the settlement of a bona fide infringement suit. It may not be immediately apparent why the settlement context implies transfer of goodwill. It does so because a bona fide infringement suit is predicated on the plaintiff's belief that the defendant has unfairly capitalized on plaintiff's goodwill; in other words, defendant wrongfully took goodwill from plaintiff. The district court found that prior to the assignment many consumers believed that Gallo Salame's products "were put out by the same company that put out Gallo wine. Since the Gallo brand had become equated with wine in the public mind, Plaintiff's goodwill rubbed off on Gallo Salame." It is this goodwill, the subject of the lawsuit, that was returned to the Winery.

That the transfer of the GALLO SALAME mark served the goal of minimizing consumer confusion becomes most clear when we view the assignment/lease-back transaction as a whole. In approving it, the district court adopted the reasoning of the federal circuit in VISA, U.S.A., Inc. v. Birmingham Trust Nat'l Bank, 696 F.2d 1371 (Fed.Cir.1982), cert. denied sub nom. South Trust Bank of Alabama v. VISA, U.S.A., Inc., 464 U.S. 826, 104 S.Ct. 98, 78 L.Ed.2d 104 (1983). In Visa, the court upheld an assignment/license-back of the mark CHECK-O.K., used in connection with check cashing services. The court found the arrangement to be valid as long as it satisfied the principal requirement applicable to all trademark licenses: that the licensor "provide[ ] for adequate control ... over the quality of goods or services produced under the mark." 696 F.2d at 1377; see also Star-Kist Foods, Inc. v. P.J. Rhodes & Co., 769 F.2d 1393, 1396 (9th Cir.1985) (noting same requirement for valid license). The district court specifically found that the settlement agreement sets out, and that the Winery is maintaining, a quality control program under which the Winery actively monitors Gallo Salame's practices.

We agree with the federal circuit that a simultaneous assignment and license-back of a mark is valid, where, as in this case, it does not disrupt continuity of the products or services associated with a given mark. Here, consumers of Gallo Salame's products who mistakenly believed they were purchasing a product of the Winery were identifying the product with the Winery's goodwill. The assignment/lease-back had the beneficial effect of bringing "commercial reality into congruence with customer perception that [the Winery] was controlling [Gallo Salame's] use." 1 J. McCarthy, supra § 18:1(I). The assignment/license-back is a "well-settled commercial practice." VISA, 696 F.2d at 1377; see also Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 315 F.Supp. 45, 55-56 (S.D.N.Y.1970), aff'd on other grounds 437 F.2d 566 (2d Cir.1971); Raufast S.A. v. Kicker's Pizzazz, Ltd., 208 U.S.P.Q. 699 (E.D.N.Y.1980). We see no reason to invalidate it where it maintains the public's expectations of continuity.

The core element of trademark infringement is the likelihood of confusion, i.e., whether the similarity of the marks is likely to confuse customers about the source of the products. Academy of Motion Picture Arts and Sciences v. Creative House Promotions, 944 F.2d 1446, 1454 (9th Cir.1991); Eclipse Assoc. Ltd. v. Data General Corp., 894 F.2d 1114, 1118 (9th Cir.1990). Because likelihood of confusion is a mixed question of law and fact that is predominantly factual in nature, the panel reviews the district court's determination for clear error. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1355-56 (9th Cir.1985) (en banc).

The district court made numerous findings concerning likelihood of confusion, applying eight factors set out by the Ninth Circuit in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979). Those factors include: (1) strength of the allegedly infringed mark; (2) proximity or relatedness of the goods; (3) similarity of the sight, sound, and meaning of the marks; (4) evidence of actual confusion; (5) degree to which the marketing channels converge; (6) type of the goods and degree of care consumers are likely to exercise in purchasing them; (7) intent of the defendant in selecting the allegedly infringing mark; and (8) likelihood that the parties will expand their product lines. Id. at 348-54. This list of factors, while perhaps exhausting, is neither exhaustive nor exclusive.4 Id. at 348 n. 11. Rather, the factors are intended to guide the court in assessing the basic question of likelihood of confusion. Eclipse, 894 F.2d at 1118. The presence or absence of a particular factor does not necessarily drive the determination of a likelihood of confusion. We consider the factors examined by the district court in turn.

Trademark law offers greater protection to marks that are "strong," i.e., distinctive. The strength of a mark is determined by its placement on a "continuum of marks from 'generic,' afforded no protection; through 'descriptive' or 'suggestive,' given moderate protection; to 'arbitrary' or 'fanciful' awarded maximum protection." Nutri/System, Inc. v. Con-Stan Industries, Inc., 809 F.2d 601, 605 (9th Cir.1987). While personal names used as trademarks are not inherently distinctive, they are treated as strong marks upon a showing of secondary meaning. 1 J. McCarthy, supra § 13:2; Scarves by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1173 (2d Cir.1976). Secondary meaning is the consumer's association of the mark with a particular source or sponsor. Levi Strauss, 778 F.2d at 1354.

The district court found that the GALLO mark has acquired secondary meaning through the Winery's long, continued use of the mark, the mark's widespread, national public recognition, and the Winery's extensive and expensive advertising and promotion of products bearing the mark. These findings are not clearly erroneous; in fact, Joseph concedes that the mark has acquired secondary meaning as applied to wine. He nevertheless argues that the mark's strength does not entitle it to protection in other product fields. This argument goes more to the question of related products, discussed below, than it does to strength. The finding that GALLO is a strong mark simply means that it is more distinctive than a descriptive or suggestive mark, and therefore more susceptible to protection as an initial matter.

Where goods are related or complementary, the danger o