Cite as 562 F.2d 1157 (1977)
case involved claims for breach of contract and trademark infringement in which the plaintiffs also asked for an accounting. The Court ruled that the wording of the claim for relief is not dispositive. The plaintiffs sought money damages and had a right to trial by jury. Id. at 477–78, 82 S.Ct. 894. See also Ross v. Bernhard, 396 U.S. 531, 541–42, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 509, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Plaintiffs’ claim for damages and an accounting of profits in this case parallels that made in Dairy Queen.
The issue whether an accounting of profits in an infringement action is legal or equitable was considered by the court in Swofford v. B & W, Inc., 336 F.2d 406 (5 Cir.), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1964). That court held that Dairy Queen controlled, and said:
“[A]n accounting for profits, although a creature of equity, is a rule of administration and not of jurisdiction. The court of equity awarded compensatory damages incidental to an injunction to avoid multiplicity of suits and not because the jury lacked competence. We do not believe that this practice in patent and copyright infringement cases, which was justified historically to avoid multiplicity of litigation in a divided procedure, should be continued in a merged system where such multiplicity can be avoided by one civil action. It is a well-settled doctrine that the distinction of jurisdiction, between law and equity, is constitutional, to the extent to which the Seventh Amendment forbids any infringement of the right of trial by jury, as fixed by the common law. To continue the past practice is to convert an administrative rule into a jurisdictional one so as to deprive the parties of a jury on what is basically a money claim for damages based on a charge of … infringement.” 336 F.2d at 411 (citations omitted).
We agree with this reasoning. Plaintiffs in this case had a right to a jury trial.[1]
But a right is not an obligation. Dairy Queen only decided when a party has a right to a jury trial. It certainly cannot be read to hold that the parties are required to have a jury determination even if they do not wish it. It is clear from our analysis of the Pre-Trial Conference Order and jury instructions that the parties did not intend the jury to consider profits. The district court therefore was in error in concluding that Dairy Queen compelled the jury to consider profits in this case.
Conclusion
The judgment of the district court finding infringement is affirmed. The McDonald commercials are based on the same ideas as the H. R. PufnStuf series. The expression of that idea is sufficiently similar so that a jury applying an intrinsic test could find infringement. This is especially true here since there was strong evidence of access.
SNEED, Circuit Judge:
I concur in the preceding portion of this opinion. The following portion, dealing with the problems of alternative or cumulative recovery and “in lieu” damages, expresses the majority view of this court on these two issues, and is intended to complement the preceding portion of this opinion.
I.
Alternative or Cumulative Recovery.
If defendants can render an accounting of their profits, the question re-
- ↑ The Court in Dairy Queen did make an exception to its right to jury rule, where “the ‘accounts between the parties’ are of such a ‘complicated nature’ that only a court of equity can satisfactorily unravel them.” 369 U.S. at 478, 82 S.Ct. at 900. Plaintiffs claim that the complex nature of the accounting process in this case bars jury consideration under this reasoning. We disagree. The mere fact that corporate profits are so indirectly related to the infringement as to make an accounting impossible does not make the case complicated. As the Supreme Court noted, it will be a “rare case” where a jury could not adequately handle the issue. Id. This is not such a case.
