King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084 (10th Cir. 1999). · Go Syfert
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084 (10th Cir. 1999). Cases Citing This Book View Copy Cite
“courts retain an important authority to monitor the outer limits of substantial similarity within which a jury is permitted to make the factual determination whether there is a likelihood of confusion.”
280 citation events (264 in the last 25 years) across 19 distinct courts.
Strongest positive: Longoria v. Million Dollar Corporation (cod, 2021-03-31)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) Longoria v. Million Dollar Corporation (5×) also: Cited as authority (rule), Cited "see"
D. Colo. · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence high
plaintiff has presented no evidence to suggest that the defendants even aware of plaintiffs' existence, let alone that they intentionally attempted to trade on plaintiff's reputation or good will.
discussed Cited as authority (verbatim quote) The Trial Lawyers College v. Gerry Spences Trial Lawyers College at Thunderhead Ranch
D. Wyo. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
typically the greater the similarity between the products and services, the greater the likelihood of confusion.
examined Cited as authority (verbatim quote) Big Dog Motorcycles, L.L.C. v. Big Dog Holdings, Inc. (6×) also: Cited as authority (rule), Cited "see"
D. Kan. · 2005 · quote attribution · 1 verbatim quote · confidence high
courts retain an important authority to monitor the outer limits of substantial similarity within which a jury is permitted to make the factual determination whether there is a likelihood of confusion.
examined Cited as authority (verbatim quote) Klein-Becker USA, LLC v. Product Quest Manufacturing, Inc. (3×) also: Cited as authority (rule)
D. Utah · 2005 · quote attribution · 1 verbatim quote · confidence high
handful of anecdotal evidence is de minimis and does not support a finding of a genuine issue of material fact as to the likelihood of confusion
examined Cited as authority (quoted) 1-800 Contacts, Inc. v. Lens.Com, Inc. (7×) also: Cited as authority (rule), Cited "see"
10th Cir. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
he weight afforded to some of the factors differs when applied in ... separate contexts.
discussed Cited as authority (rule) Chase
D. Colo. · 2026 · confidence medium
“Likelihood of confusion forms the gravamen for a trademark infringement action,” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999), and while “the issue of likelihood of confusion is a question of fact, [that] does not preclude the entry of summary judgment in trademark infringement cases.” Universal Money Ctrs., Inc. v. Am.
discussed Cited as authority (rule) Healthcare Co Ltd v. MPI Group LLC
D. Utah · 2025 · confidence medium
Utah Mar. 18, 2022). 260 MTD 21. 261 Team Tires Plus, Ltd. v. Tires Plus, Inc., 394 F.3d 831, 833 (10th Cir. 2005) (citing King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999)). 262 Id. at 833. 263 MTD 22. 264 Alfwear, Inc. v. Kulkote, LLC, No. 2:19-CV-00027-CW-JCB, 2020 WL 4001242 , at *3 (D.
cited Cited as authority (rule) Acushnet v. McMurdie
D. Utah · 2025 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1090 (10th Cir. 1999).
cited Cited as authority (rule) Brinkerhoff Restaurants LLC v. Castle Pines Golf Club, Inc.
D. Colo. · 2024 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1090 (10th Cir. 1999).
examined Cited as authority (rule) Airquip, Inc. v. HomeAdvisor, Inc (3×) also: Cited "see, e.g."
D. Colo. · 2024 · confidence medium
In evaluating whether there is a likelihood of confusion, a court should consider the following non-exhaustive factors (the “King factors”): (a) the degree of similarity between the marks; (b) the intent of the alleged infringer in adopting its mark; (c) evidence of actual confusion; (d) the relation in use and the manner of marketing between the goods or services marketed by the competing parties; (e) the degree of care likely to be exercised by purchasers; and (f) the strength or weakness of the marks. 1-800 Contacts, 722 F.3d at 1239 (quoting King of the Mountain Sports, Inc. v. Chrysle…
discussed Cited as authority (rule) Zurich American Insurance Company and Fidelity and Deposit Company of Maryland v. Ascent Construction
D. Utah · 2023 · confidence medium
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 51 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 52 Celotex, 477 U.S. at 323 . 53 King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999). 54 Matsushita Elec.
cited Cited as authority (rule) Security USA Services, LLC v. Invariant Corp.
D.N.M. · 2023 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1093 (10th Cir. 1999). “[T]he similarity of the marks factor constitutes the heart of the analysis.” Id.
discussed Cited as authority (rule) Andrew v. Travelers Home and Marine Insurance Company, The (2×)
D. Utah · 2022 · confidence medium
First, Travelers argues that it is entitled to summary judgment on Andrew’s breach of contract claim because “the damages claimed by [Andrew] all arise from long-term wear and deterioration of the underlying concrete surfaces” and “[t]he Policy plainly excludes” these losses under three policy exclusions.17 In Utah, insurance policies are generally interpreted according to the rules of contract interpretation.18 “Courts interpret words in insurance policies according to their usually accepted meanings and in light of the insurance policy as a whole.”19 “Policy terms are harmoni…
discussed Cited as authority (rule) Stoneburner v. RSUI Indemnity
D. Utah · 2022 · confidence medium
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 24 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 25 King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999). 26 Plaintiffs’ Response in Opposition to Motion for Summary Judgment (“Opposition”) at 3, ECF No. 29, filed Nov. 19, 2021.
discussed Cited as authority (rule) Best Price Auto Salvage LLC v. Best Value Auto Salvage LLC
W.D. Okla. · 2022 · confidence medium
The degree of similarity between marks is measured “on three levels: sight, sound, and meaning.” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1090 (10th Cir. 1999) (citations omitted).
discussed Cited as authority (rule) Byron v. University of Utah
D. Utah · 2022 · confidence medium
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 31 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 32 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 33 King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999). 34 ECF No. 2 at ¶¶ 28–44. 35 ECF No. 59 at 1–2. 36 Matthews v. Eldridge, 424 U.S. 319, 332 (1976). opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”37 “To assess whether an individual was denied procedural due process, courts must engage in a two-step inquiry: (1) did the individual poss…
discussed Cited as authority (rule) Murdock v. Skinner
D. Utah · 2021 · confidence medium
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 14 Celotex, 477 U.S. at 323 . 15 King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999). 16 29 U.S.C. § 207 (a)(1). 17 29 U.S.C. § 213 (a)(1). 18 ECF No. 20 at 2.
discussed Cited as authority (rule) Reaction Washer v. IDEPA
D. Utah · 2021 · confidence medium
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 21 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 22 King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999).
cited Cited as authority (rule) EST Inc. v. Royal-Grow Products, LLC
D. Kan. · 2021 · signal: cf. · confidence medium
Cf. King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d at 1084, 1089 (10th Cir. 1999); Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920 , 923 n.2 (10th Cir. 1986).
examined Cited as authority (rule) Alfwear v. Mast-Jaegermeister US (3×) also: Cited "see"
D. Utah · 2021 · confidence medium
The focus for this factor “is whether defendant had the intent to derive benefit from the reputation or goodwill of plaintiff.” King of the Mountain Sports, 185 F.3d at 1091 (internal quotations omitted).
discussed Cited as authority (rule) Gentle Giant Moving Co., Inc. v. Gentle Giant Moving and Storage, Inc. (2×) also: Cited "see, e.g."
D. Colo. · 2019 · confidence medium
However, “[d]e minimis evidence of actual confusion does not establish the existence of . . . [a] likelihood of confusion.” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir. 1999) (citing Universal Money Ctrs., Inc. v. Am.
discussed Cited as authority (rule) Affliction Holdings, LLC v. Utah Vap Or Smoke, LLC
10th Cir. · 2019 · confidence medium
Id. at 1093 (noting that the product and marketing factors are of increased importance when source confusion is alleged).
discussed Cited as authority (rule) Cent. Bancorp, Inc. v. Cent. Bancompany, Inc. (2×)
unknown court · 2019 · confidence medium
"Typically, the greater the similarity between the products and services, the greater the likelihood of confusion." Id. at 1092 (internal quotation marks omitted; alterations incorporated).
discussed Cited as authority (rule) Kelly-Brown v. Winfrey
2d Cir. · 2016 · confidence medium
Corp. v. SensoryEffects Flavor Co., 613 F.3d 754, 760 (8th Cir. 2010); Synergistic Int'l, LLC v. Korman, 470 F.3d 162 , 170 (4th Cir. 2006) (“In assessing a trademark dispute, we review de novo a district court’s award of summary judgment.”); KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005); Gray v. Meijer, Inc., 295 F.3d 641 , 645 & n.2 (6th Cir. 2002); King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir. 1999); Lucent Info.
discussed Cited as authority (rule) Gallegos v. LVNV Funding LLC
D. Utah · 2016 · confidence medium
The Court must “construe the evidence and the reasonable inferences drawn therefrom in the light most favorable to the nonmovant,” id. at 972 (citing King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999)), but conclusory statements and attorney arguments submitted by the nonmoving party do not create a genuine issue of material fact, see Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671-72 (10th Cir.1998).
discussed Cited as authority (rule) Hornady Manufacturing Co. v. Doubletap, Inc. (2×) also: Cited "see"
10th Cir. · 2014 · confidence medium
A. Similarity of the Marks The similarity of the marks is the “first and most important factor.” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1091 (10th Cir.1999).
examined Cited as authority (rule) Water Pik, Inc. v. Med-Systems, Inc. (5×) also: Cited "see"
10th Cir. · 2013 · confidence medium
Actual Confusion “[Ajctual confusion in the marketplace is often considered the best evidence of likelihood of confusion.” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir.1999) (internal quotation marks omitted).
examined Cited as authority (rule) HealthOne of Denver, Inc. v. UnitedHealth Group Inc. (4×) also: Cited "see", Cited "see, e.g."
D. Colo. · 2012 · confidence medium
In order to avoid summary judgment on a trademark infringement claim, a plaintiff “must show that a genuine issue of material facts exists regarding whether defendants’ use of its [trademark] would likely cause confusion.... ” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999).
examined Cited as authority (rule) Water Pik, Inc. v. Med-Systems, Inc. (4×) also: Cited "see"
D. Colo. · 2012 · confidence medium
See Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 973 (10th Cir.2002); King of the Mountain Sports, 185 F.3d at 1091 (noting that similarity of the marks is the most important factor). 2.
discussed Cited as authority (rule) Grout Shield Distributors, LLC v. Elio E. Salvo, Inc.
E.D.N.Y · 2011 · confidence medium
Sept. 1, 2000) (“Here, plaintiff has proffered de minimis evidence of actual confusion .... evidence of actual confusion is negligible given the small number of people who allegedly expressed confusion and the absence of a valid statistical sample,” further noting that plaintiff failed to introduce evidence of a single instance where a customer purchased defendant’s product over its own (collecting cases)); George & Co., LLC, 575 F.3d at 399 (“If there is a very large volume of contracts or transactions which could give rise to confusion and there is only a handful of instances of actu…
discussed Cited as authority (rule) 1-800 CONTACTS, INC. v. Lens. Com, Inc. (2×)
D. Utah · 2010 · confidence medium
Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1090 (10th Cir.1999) (citations omitted). 156 .
discussed Cited as authority (rule) Guidance Endodontics, LLC v. Dentsply International, Inc.
D.N.M. · 2010 · confidence medium
Those factors are: “(1) the degree of similarity between the marks; (2) the intent of the alleged infringer in adopting its mark; (3) evidence of actual confusion; (4) similarity of products and manner of marketing; (5) the degree of care likely to be exercised by purchasers; and (6) the strength or weakness of the marks.” Sally Beauty Co. v. Beautyco, Inc., 304 F.3d at 972 (citing King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089-90 (10th Cir.1999)).
discussed Cited as authority (rule) University of Kansas v. Sinks (2×) also: Cited "see"
D. Kan. · 2009 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1090 (10th Cir.1999) (quoting Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 925 (10th Cir.1986)). 58 .
discussed Cited as authority (rule) George & Co. LLC v. Imagination Entertainment Ltd.
4th Cir. · 2009 · confidence medium
Like Petro Stopping, in light of George’s huge sales volume, four instances of consumer confusion is at best de minimis. 130 F.3d at 95 ; cf. Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 639 (7th Cir.1999) (evidence of only two consumers who were confused was “minimal” and did not prevent dismissal on summary judgment); King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092-93 (10th Cir.1999) (holding that seven examples of actual confusion was de minimis).
discussed Cited as authority (rule) Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC (2×) also: Cited "see"
10th Cir. · 2009 · confidence medium
Co., 22 F.3d 1527, 1534-36 (10th Cir.1994) (de minimis evidence of actual consumer confusion insufficient when the defendant introduced substantial and reliable evidence demonstrating no significant actual confusion and when the two marks are not similar); King of the Mountain Sports, 185 F.3d at 1092-93 (de minimis evidence of actual consumer confusion insufficient “in light of the complete lack of similarity between the defendants’ uses and plaintiffs mark.”).
discussed Cited as authority (rule) John Allan Co. v. Craig Allen Co. LLC
10th Cir. · 2008 · confidence medium
A plaintiff, however, “need not set forth evidence of actual confusion to prevail in a trademark infringement action.” King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir.1999).
cited Cited as authority (rule) Utah Lighthouse Ministry v. Foundation for Apologetic Information & Research
10th Cir. · 2008 · confidence medium
Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1093 (10th Cir.1999).
examined Cited as authority (rule) University of Kansas v. Sinks (6×) also: Cited "see, e.g."
D. Kan. · 2008 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1090 (10th Cir.1999). 82 .
examined Cited as authority (rule) Vail Associates, Inc. v. Vend-Tel-Co., Ltd. (6×) also: Cited "see"
10th Cir. · 2008 · confidence medium
That begs the question: How many are "some?" We have recognized that "`[p]robable confusion cannot be shown by pointing out that at someplace, at sometime, someone made a false identification.'" King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir.1999) (quoting 3 J.
discussed Cited as authority (rule) Frontrange Solutions USA, Inc. v. Newroad Software, Inc. (2×)
D. Colo. · 2007 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999).
cited Cited as authority (rule) Hodgdon Powder Co., Inc. v. ALLIANT TECHSYSTEMS
D. Kan. · 2007 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999) (quotations omitted).
discussed Cited as authority (rule) John Allan Co. v. Craig Allen Co. LLC (2×)
D. Kan. · 2007 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1090 (10th Cir.1999).
discussed Cited as authority (rule) Utah Lighthouse Ministry, Inc. v. Discovery Computing, Inc.
D. Utah · 2007 · confidence medium
Similarly, “[t]he elements of common law trademark [are] ... a plaintiff must establish a pro-tectable interest in its mark, the defendant’s use of that mark in commerce, and the likelihood of consumer confusion.” Donchez, 392 F.3d at 1219 ; King of the Mountain Sports v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999) (citing 15 U.S.C. §§ 1114 (1), 1125(a)) (“Likelihood of confusion forms the gravamen for a trademark infringement action.”).
examined Cited as authority (rule) Medi-Flex, Inc. v. Nice-Pak Products, Inc. (3×) also: Cited "see"
D. Kan. · 2006 · confidence medium
See Sally Beauty, 304 F.3d at 972 ; King of Mountain Sports, Inc. v. Chrysler Coup., 185 F.3d 1084, 1090 (10th Cir.1999).
cited Cited as authority (rule) Team Tires Plus, Ltd. v. Tires Plus, Inc.
10th Cir. · 2005 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999).
cited Cited as authority (rule) Earl E. Thompson, Sr. v. Henry T. Haynes, Fluid Controls, Inc., and Mighty Clean Corporation
Fed. Cir. · 2002 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 , 51 USPQ2d 1349, 1352 (10th Cir.1999).
discussed Cited as authority (rule) Sterling Acceptance Corp. v. Tommark, Inc.
D. Maryland · 2002 · confidence medium
As the Court noted in King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir.1999), d handful of anecdotal evidence is de minimis and -does not support a finding of a genuine issue of material fact as to the likelihood of confusion.
examined Cited as authority (rule) Sally Beauty Company v. Beautyco Inc. (6×) also: Cited "see"
10th Cir. · 2002 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999).
discussed Cited as authority (rule) Altira Group LLC v. Philip Morris Companies, Inc. (2×) also: Cited "see, e.g."
D. Colo. · 2002 · confidence medium
King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999) (considering forward and reverse confusion); Universal Money Ctrs., Inc. v. American Tel. & Tel.
discussed Cited as authority (rule) Gene S. Jacobsen, and Cross-Appellee v. Deseret Book Company, a Utah Corporation Dean Hughes, And
10th Cir. · 2002 · signal: cf. · confidence medium
Cf. King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 (10th Cir.1999) (holding the trier of fact should normally make the determination of similarity in a trademark infringement case, but the court can monitor the “outer limits” of similarity if “reasonable minds” could not differ on the question).
KING OF THE MOUNTAIN SPORTS, INC., a Wyoming Corporation, Plaintiff-Appellant,
v.
CHRYSLER CORPORATION, a Michigan Corporation; Eclipse Television and Sports Marketing, LLC, a Colorado Limited Liability Company; Eclipse Television and Sports Marketing, Inc., a California Corporation; Henry Schneidman, an Individual, and Mark Schelde, an Individual, Defendants-Appellees, and Bogner of America, Inc., a Delaware Corporation, Defendant
97-1290.
Court of Appeals for the Tenth Circuit.
Jul 8, 1999.
185 F.3d 1084
Scott S. Havlick (Donald A. Degnan and Rita S. Heimes, with him on the briefs), Holland & Hart, LLP, Boulder, Colorado, appearing, for plaintiff-appellant., Richard P. Holme (Glenn K. Beaton and Bruce L. Plotkin, with him on the brief), Davis, Graham & Stubbs, LLP, Denver, Colorado, appearing, for defendants-appel-lees.
Tacha, Henry, Lucero.
Cited by 88 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 74%
Citer courts: Tenth Circuit (1)
TACHA, Circuit Judge.

Plaintiff King of the Mountain Sports, Inc. (“KOM”) filed suit against defendants alleging that they infringed its trademark and violated the Federal Anti-Dilution Act and Colorado Consumer Protection Act. The district court granted defendants’ motion for summary judgment on all claims. KOM appealed only the disposition of its trademark infringement claims. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Background

Plaintiff sells camouflage-patterned, natural fiber, outdoor clothing and related mountaineering accessories. It obtained a federal registration for its first stylized trademark on June 4, 1991, and for a second stylized mark on September 28, 1993. “[Plaintiffs] first mark consisted of the words ‘King of the Mountain Sports Inc.’ in Gothic lettering superimposed on the outline of a mountain and enclosed by a thin, rectangular border.” King of the Mountain Sports, Inc. v. Chrysler Corp., 968 F.Supp. 568, 570 (D.Colo.1997).

[[Image here]]

The second mark consists of the words “King of the Mountain” in Gothic lettering with an outline of a mountain in the background. As used, plaintiffs marks employ dark lettering against drab background colors such as the blacks, browns, and greens found in camouflage. The Gothic lettering is horizontally oriented in one line and only the “K” of King and “M” of Mountain are capitalized.

[[Image here]]

[*1088] Plaintiff primarily markets its products to hunters, fishers, campers, and hikers but notes that its customers use its products for all cold weather outdoor activities. It also contends that the downhill skiing and snowboarding apparel markets are a logical expansion area for its product line.

In 1995, defendant Eclipse Television and Sports Marketing LLC (“Eclipse”) purchased from defendant Eclipse Television and Sports Marketing, Inc. (“Eclipse California”) the right to contract with defendant Chrysler to use the “Jeep KING OF THE MOUNTAIN DOWNHILL SERIES” logo. “Defendants’ primary logo consists of the word ‘Jeep’ in largest, purple type above the words ‘KING OF THE MOUNTAIN’ in smaller, blue type, and the words ‘DOWNHILL SERIES’ in even smaller, red type at the bottom of the logo.” King of the Mountain Sports, 968 F.Supp. at 570. Other than the word “Jeep,” all words consist entirely of capital letters and “are superimposed over a blue outline of a mountain with a picture of a red ski racer in a tucked position and a series of red and orange straight lines stretched out behind him to suggest the speed with which he is racing.” Id.

[[Image here]]

Defendants’ logo, however, does not always conform to this description. For example, on banners and scoreboards, defendants have employed a bright blue background with the word “Jeep” on either side of “KING OF THE MOUNTAIN” in stark white, bold, capital letters. Also, television listings have simply referred to the event as “Skiing: King of the Mountain Downhill Series.”

Defendants use the logo to identify and promote a series of televised downhill ski races. To this end, they have placed the logo, for example, on billboards, banners, clothing apparel, and in magazines. Defendants have given away several items of clothing featuring the logo to participants, television commentators, and spectators at the skiing events. Defendant Bogner manufactures the ski jackets upon which defendants’ logo appears.

Plaintiff objects to defendants’ use of the phrase “king of the mountain” in the name of its ski event. It argues that defendants’ use of the phrase creates a likelihood of sponsorship confusion. Plaintiff fears that its consumers will believe that KOM sponsors, or is otherwise associated with, the downhill skiing event.

Defendants filed a summary judgment motion in district court arguing, as to the trademark infringement claims, that no likelihood of confusions exists. After thor[*1089] oughly analyzing the appropriate factors, the district court agreed with defendants and entered summary judgment against KOM.

II. Discussion

We review the grant of summary judgment de novo, using the same standard applied by the district court. See, e.g., First Sav. Bank, F.S.B. v. First Bank Sys., Inc., 101 F.3d 645, 650 (10th Cir.1996); Universal Money Ctrs., Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir.1994). [1] Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “ ‘When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.’” Universal Money Ctrs., 22 F.3d at 1529 (quoting Applied, Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)).

Likelihood of confusion forms the gravamen for a trademark infringement action. See 15 U.S.C. §§ 1114(1), 1125(a). Section 43(a) of the Lanham Act declares that any person who

uses in commerce any word, term, name, symbol, or device, ... which ... is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Id. § 1125(a). Although “likelihood of confusion is frequently a fairly disputed issue of fact on which reasonable minds may differ, the issue is amenable to summary judgment in appropriate cases.” Universal Money Ctrs., 22 F.3d at 1530 n. 2 (internal quotation marks and citation omitted); accord First Sav. Bank, 101 F.3d at 650. “[C]ourts retain an important authority to monitor the outer limits of substantial similarity within which a jury is permitted to make the factual determination whether there is a likelihood of confusion.” Universal Money Ctrs., 22 F.3d at 1530 n. 2 (internal quotation marks and citation omitted); accord First Sav. Bank, 101 F.3d at 650.

Thus, in order to prevail on appeal, plaintiff must show that a genuine issue of material fact exists regarding whether defendants’ use of its logo would likely cause confusion about the sponsorship of the downhill ski race. The Tenth Circuit has identified six factors, derived from the Restatement of Torts § 729 (1938), that aid in determining whether a likelihood of confusion exists between two marks:

(a) the degree of similarity between the marks;
(b) the intent of the alleged infringer in adopting its mark;
(c) evidence of actual confusion;
(d) the relation in use and the manner of marketing between the goods or services marketed by the competing parties;
(e) the degree of care likely to be exercised by purchasers; and
[*1090] (I) the strength or weakness of the marks.

First Savings Bank, 101 F.3d at 652; see also Universal Money Ctrs., 22 F.3d at 1530; Restatement (Third) of Unfair Competition §§ 20-23 (1995). "This list is not exhaustive. All of the factors are interrelated, and no one factor is dispositive." Universal Money Ctrs., 22 F.3d at 1530. While we consider these factors to determine whether a likelihood of confusion exists regardless of whether the trademark infringement suit involves source or sponsorship confusion, see GTE Corp. v. Williams, 904 F.2d 536, 539-40 (10th Cir.1990); Amoco Oil Co. v. Rainbow Snow, 748 F.2d 556, 558 (10th Cir.1984), the weight afforded to some of the factors differs when applied in these separate contexts. In both confusion of source and confusion of sponsorship cases, the similarity of the marks factor constitutes the heart of our analysis. See Heartsprings v. Heartspring, 143 F.3d 550, 554 (10th Cir.1998) (recognizing that the key inquiry in a source confusion case is "whether the consumer is likely to be deceived or confused by the similarity of the marks.'" (quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 780, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992))); Wendt v. Host Int'l, Inc., 125 F.3d 806, 812 (9th Cir.1997) (emphasizing the primacy of the similarity of mark factor in a confusion of endorsement analysis). However, in the rare, pure sponsorship action, other factors-such as the relation in use and the manner of marketing between the goods or services and the degree of care likely to be exercised by purchasers-have little importance. Bearing this in mind, if, as in any case, the examination of the various factors establishes a genuine issue of material fact regarding the likelihood of sponsorship confusion, summary judgment is not appropriate.

A. Similarity Between the Marks

We test the degree of similarity between marks on three levels: sight, sound, and meaning. See, e.g., First Sav. Bank, 101 F.3d at 653; Universal Money Ctrs., 22 F.3d at 1530-31; Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 925 (10th Cir.1986). We do not consider these factors in isolation. Instead, we must examine them "in the context of the marks as a whole as they are encountered by consumers in the marketplace." Beer Nuts, 805 F.2d at 925; accord Heartsprings, 143 F.3d at 554; Universal Money Ctrs., 22 F.3d at 1531; 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:47 (4th ed. 1996) ("Conflicting marks consisting of both words and pictorial symbols must be compared in their entireties to determine likelihood of confusion." (emphasis in original)). Furthermore, we do not engage in a `side-by-side' comparison." Universal Money Ctrs., 22 F.3d at 1531. Rather, "the court must determine whether the alleged infringing mark will be confusing to the public when singly presented." Id. (internal quotation marks and citation omitted). We give the similarities of the marks more weight than the differences. See id.

In this case, plaintiff argues that because defendants employ the phrase "King of the Mountain," the similarity factor weighs in favor of it and creates a genuine issue of material fact regarding likelihood of confusion. We disagree. Comparing the stylized trademark of plaintiff with the ways in which defendants have used the phrase "king of the mountain," we hold that no reasonable jury could find similarity. Even assuming that the phrase "king of the mountain" constitutes the dominant portion of defendants' logo, as plaintiff argues, the marks as a whole [2] are not confusingly similar. Al[*1091] though defendants’ logo employs, in part, the same phrase as plaintiffs mark and therefore might sound somewhat similar, the sight and sense of meaning invoked by ' defendants’ logo and plaintiffs stylized mark differ drastically. First, plaintiffs stylized mark is in Gothic lettering, with only the first letter of “King” and “Mountain” capitalized, against a solitary mountain ridge outline. It appears in camouflage colors, consistent with plaintiffs marketing toward hunters. In short, the mark is quite understated. The’ opposite is true regarding the ways in which defendants have used the phrase “king of the mountain.” Defendant’s primary logo is quite colorful, done in brilliant blue, purple, red, and orange. The letters consist of bold capitals, and the words are vertically oriented. The mountain outline in the background has a different shape than that in plaintiffs mark, and the logo depicts a skier with red and orange lines shooting out from behind him to suggest the great speed at which he flies down the mountainside. Thus, the visual impact of the plaintiffs mark and defendants’ logo differs dramatically. Moreover, as the district court noted,

the marks of plaintiff and defendants do not convey the same meaning or stimulate the same mental reaction. Plaintiffs marks are simple, reserved, and dignified. Indeed, one of plaintiffs eom-plaints is that it does not want to be associated with the ‘glitzy’ ski races promoted by defendants. Defendants’ mark is bright and attention-grabbing, connoting the fun and speed associated with ski racing.

King of the Mountain Sports, Inc. v. Chrysler Corp., 968 F.Supp. 568, 573 (D.Colo.1997). Thus, the first and most important factor, similarity of ’the marks, weighs heavily in defendants’ favor. [3]

B. Intent of the Defendants

The proper focus under this factor “is whether defendant had the intent to derive benefit from the reputation or goodwill of plaintiff.” Jordache Enters., Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1485 (10th Cir.1987) (internal quotation marks and citation omitted); accord Universal Money Ctrs., 22 F.3d at 1532. Plaintiff argues that although it has no direct evidence of bad intent, a jury could infer defendants’ intent to derive the benefit and goodwill of ROM’s mark because they failed to conduct a full trademark search before using the phrase “king of the mountain.” We disagree. As the district court noted, “Plaintiff has presented no evidence to suggest that the defendants were even aware of plaintiffs existence, let alone that they intentionally attempted to trade on plaintiffs reputation or goodwill.” King of [*1092] the Mountain Sports, 968 F.Supp. at 574. Instead, uncontested evidence indicates:

(1) defendants did not know of plaintiff or its trademarks when they designed their logo; (2) defendants knew that no other competitor in the ski-race industry used the term “King of the Mountain;” and (3) defendants incorporated the phrase “King of the Mountain” to describe the goal of the ski racers competing in the event — to be the “king of the mountain” in downhill ski racing.

Id. Because the undisputed “evidence indicates [that the] defendants] did not intend to derive benefits from ... plaintiffs existing mark, this factor weighs against the likelihood of confusion.” Heartsprings, 143 F.3d at 556; accord First Sav. Bank, 101 F.3d at 655.

C. Similarity in Products/Services and Manner of Marketing

Typically, “[t]he greater the similarity between the products and services, the greater the likelihood of confusion.” Universal Money Ctrs., 22 F.3d at 1532 (internal quotation marks and citations omitted). This is undoubtedly true when the action pertains to source or affiliation confusion. For example, Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 926 (10th Cir.1986) involved two competing companies marketing very similar goods— sweetened salted peanuts — in the same manner. In that case, we found that this factor added strength to the position that a reasonable consumer would likely be confused as to the source of the peanuts. See id. However, in a case involving pure sponsorship confusion, the parties may have little similarity in their products or manner of marketing. Here, KOM’s clothing is only marginally related to defendant’s ski event. This disconnection greatly reduces the relevance of the similarity of products factor. We therefore find it provides no support of plaintiffs claim.

D. Degree of Care Exercised by Purchasers

“A consumer exercising a high degree of care in selecting a product reduces the likelihood of confusing similar trade names.” Heartsprings, 143 F.3d at 557. Plaintiff argues, however, that this factor rarely reduces the risk of sponsorship confusion. We agree. The harm plaintiff seeks to remedy in this case is loss of reputation and goodwill stemming from its perceived sponsorship of the ski event. The care with which consumers select a product does not impact the association they may make regarding the sponsorship of an event. Therefore, even if plaintiffs current and potential customers exercise a high degree of care, it would have little impact on our determination regarding likelihood of confusion in this case.

E.Actual Confusion

Although plaintiff need not set forth evidence of actual confusion to prevail in a trademark infringement action, see Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 928 (10th Cir.1986), “[a]ctual confusion in the marketplace is often considered the best evidence of likelihood of confusion.” Universal Money Ctrs., 22 F.3d at 1534; accord Jordache, 828 F.2d at 1487. However, “isolated instances of actual confusion [may] be de minimis.” Universal Money Ctrs., 22 F.3d at 1535; see also McCarthy, supra, § 23:14 (“Evidence of actual confusion of a very limited scope may be dismissed as de minimis: Probable confusion cannot be shown by pointing out that at someplace, at some time, someone made a false identification.” (internal quotation marks omitted)). “De minimis evidence of actual confusion does not establish the existence of a genuine issue of material fact regarding the likelihood of confusion.” Universal Money Ctrs., 22 F.3d at 1535. After carefully reviewing the record, we have found that plaintiff has put into evidence, at most, only seven examples of actual confusion. This handful of anecdotal evidence is de minimis and does not support a finding of a genuine issue of material fact as to the likelihood of confusion, especially in light of the complete lack of similarity between[*1093] the defendants’ uses and plaintiffs mark. See id. at 1535-36 (“The de minimis evidence of actual confusion is especially undermined in this case by the sheer lack of similarity between the marks.”).

F. Strength of Plaintiffs Mark

The stronger a trademark, the more likely that encroachment upon it will lead to sponsorship confusion. See First Sav. Bank, 101 F.3d at 653. “A strong trademark is one that is rarely used by parties other than the owner of the trademark, while a weak trademark is one that is often used by other parties.” Id. (internal quotation marks and citation omitted). To assess the relative strength of a mark, one must consider the two aspects of strength: (1) “Conceptual Strength: the placement of the mark on the [distinctiveness or fanciful-suggestive-descriptive] spectrum;” and (2) “Commercial Strength: the marketplace recognition value of the mark.” McCarthy, supra, § 11:83.

Under the conceptual strength prong, the categories, in descending order of strength, are: fanciful; arbitrary; suggestive; descriptive; and generic. See id. § 11:1; see also Heartsprings, 143 F.3d at 555. “ ‘Fanciful’ marks consist of ‘coined’ words that have been invented or selected for the sole purpose of functioning as a trademark.” McCarthy, supra, § 11:5. “Arbitrary marks comprise those words, symbols, pictures, etc., that are in common linguistic use but which, when used with the goods or services in issue, neither suggest nor describe any ingredient, quality or characteristic of those goods or services.” Id. § 11:11. Suggestive marks are those that suggest some quality or ingredient of the goods. See id. § 11.62. Often the line between arbitrary and suggestive is difficult to distinguish, see id. § 11:12, but for our purposes, no reason exists to make the distinction. Viewed in the light most favorable to plaintiff, its stylized mark is at least suggestive on the conceptual strength spectrum. Moreover, again drawing all inferences in favor of plaintiff, we assume that the mark has great commercial strength in the hunting apparel market. Therefore, plaintiffs mark is quite strong.

The strength of plaintiffs mark cannot outweigh the other factors, however. Given the great dissimilarity between its mark as a whole and the ways in which defendants have used the phrase, “king of the mountain,” as well as our above analysis of the other factors, we find that no reasonable juror could find likelihood of confusion between plaintiffs and defendants’ marks. Accordingly, we hold that there exists no genuine issue of material fact as to the likelihood of confusion.

III. Conclusion

In sum, after reviewing the evidence in the light most favorable to plaintiff, we conclude as a matter of law that no likelihood of confusion exists. We AFFIRM the district court’s grant of summary judgment as to the trademark infringement issue raised on appeal.

1

. To the extent that a more recent panel decision conflicts with the standard of review enunciated in prior Tenth Circuit authority, we are bound by the earlier cases. See Clymore v. United States, 164 F.3d 569, 573 n. 5 (10th Cir.1999) (asserting that the earlier opinion " 'constitutes binding circuit precedent constraining subsequent panels absent en banc reconsideration or a superseding contraiy decision by the Supreme Court.... [Thus,] when faced with an intra-circuit conflict, a panel should follow earlier, settled precedent over a subsequent deviation therefrom.’ " (quoting Haynes v. Williams, 88 F.3d 898, 900 n. 4 (10th Cir.1996) (internal citations omitted))).

2

. KOM argues in its reply brief that it has a common law trademark not only in its stylized logo but also in the words "King of the Mountain." It did not raise this argument in its opening brief. It made only a passing reference that its complaint includes a claim for common law trademark infringement. Therefore, it waived the argument that it has a common law trademark in the words "King of the Mountain" that defendants infringed. See, e.g., State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994) (asserting that failure to raise an issue in the open[*1091] ing brief waives the issue); Codner v. United States, 17 F.3d 1331, 1332 n. 2 (10th Cir.1994) (holding we will not consider issue raised for first time in reply brief); Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n. 1 (10th Cir.1992) (declaring that an issue mentioned in brief on appeal, but not addressed, is waived). Moreover, in its complaint plaintiff only claimed a violation of its common law trademark rights to its stylized logo, distinguishing “King of the Mountain” as its trade name and "King of the Mountain" with design composite as its trademark. Therefore, the district court did not address the contention KOM now asserts. This provides additional support for finding that plaintiff has waived this argument. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“[A] federal appellate court [will] not consider an issue not passed upon below.”).

3

. We have also reviewed the record and considered the ways, outside their primary logo, that defendants have used the phrase “king of the mountain” in connection with promoting their ski event. For example, the phrase “king of the mountain” in connection with the words “Jeep” and/or “downhill series” appears on banners, ski jackets, contestants’ bibs, and advertisements. All involve bold capital letters appearing in white against a brightly colored background or in bright colors against a white background. Comparing plaintiff's stylized mark with these uses, we hold that no similarity between them exists. We likewise reject plaintiff's contention that the television listings of and the other printed references to defendants' event in the record are confusingly similar to KOM’s mark.