Dairy Queen, Inc. v. Wood/Concurrence Stewart

Mr. Justice STEWART concurs in the result.

Mr. Justice FRANKFURTER took no part in the decision of this case.

Mr. Justice WHITE took no part in the consideration or decision of this case.

Mr. Justice HARLAN, whom Mr. Justice DOUGLAS joins, concurring.

I am disposed to accept the view, strongly pressed at the bar, that this complaint seeks an accounting for alleged trademark infringement, rather than contract damages. Even though this leaves the complaint as formally asking only for equitable relief, this does not end the inquiry. The fact that an 'accounting' is sought is not of itself dispositive of the jury trial issue. To render this aspect of the complaint truly 'equitable' it must appear that the substantive claim is one cognizable only in equity or that the 'accounts between the parties' are of such a 'complicated nature' that they can be satisfactorily unraveled only by a court of equity. Kirby v. Lake Shore & Michigan Southern R. Co., 120 U.S. 130, 134, 7 S.Ct. 430, 432, 30 L.Ed. 569. See 5 Moore, Federal Practice (1951), 198-202. It is manifest from the face of the complaint that the 'accounting' sought in this instance is not of either variety. A jury, under proper instructions from the court, could readily calculate the damages flowing from this alleged trademark infringement, just as courts of law often do in copyright and patent cases. Cf., e.g., Hartell v. Tilghman, 99 U.S. 547, 555, 25 L.Ed. 357; Arnstein v. Porter, 2 Cir., 154 F.2d 464; Bruckman v. Hollzer, 9 Cir., 152 F.2d 730.

Consequently what is involved in this case is nothing more than a joinder in one complaint of prayers for both legal and equitable relief. In such circumstances, under principles long since established, Scott v. Neely, 140 U.S. 106, 110, 11 S.Ct. 712, 35 L.Ed. 358, the petitioner cannot be deprived of his constitutional right to a jury trial on the 'legal' claim contained in the complaint.

On this basis I concur in the judgment of the Court.