California Scents v. Surco Products, Inc. , 406 F.3d 1102 ( 2005 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CALIFORNIA SCENTS, aka California      
    Scents, Inc.,
    Plaintiff-counter-defendant-
    Appellant,
    v.
    SURCO PRODUCTS, INC., aka Doe 1;
    MAGIC MOUNTAIN PRODUCTS, aka
    Doe 2; ODOR CONTROL CENTRAL,
    aka Doe 3,                                   No. 03-56116
    Defendants,
    ASSOCIATED PRODUCTS, INC., a                  D.C. No.
    CV-99-00009-GLT
    Pennslyvania Corporation; RALPH
    J. SIMONS,                                    OPINION
    Counter-defendants,
    and
    PESTCO, INC., a Pennsylvania
    Corporation dba Pacific Coast;
    AIR-SCENT INTERNATIONAL, a
    Pennslyvania Corporation,
    Defendants-counter-claimants-
    Appellees.
    
    Appeal from the United States District Court
    for the Central District of California
    Gary L. Taylor, District Judge, Presiding
    Argued and Submitted
    February 8, 2005—Pasadena, California
    Filed May 6, 2005
    4987
    4988             CALIFORNIA SCENTS v. PESTCO, INC.
    Before: Harry Pregerson, William C. Canby, Jr.,
    Circuit Judges, and Edward C. Reed, Jr.,* District Judge.
    Opinion by Judge Pregerson
    *Honorable Edward C. Reed, Jr., Senior United States District Judge for
    the District of Nevada, sitting by designation.
    4990         CALIFORNIA SCENTS v. PESTCO, INC.
    COUNSEL
    Steven Brower (argued) and Robert M. Dato (briefed), Ste-
    phan, Oringher, Richman & Theodora, Costa Mesa, Califor-
    nia, for the plaintiff-appellant.
    CALIFORNIA SCENTS v. PESTCO, INC.             4991
    Richard A. Ejzak, Cohen & Grigsby, Pittsburgh, Pennsylva-
    nia, for the defendants-appellees.
    OPINION
    PREGERSON, Circuit Judge:
    When plaintiff California Scents filed its complaint it did
    not demand a jury trial. Defendant Pestco answered, filed
    counterclaims, and did demand a jury trial “as to all counter-
    claims.” In this appeal we consider whether, under Federal
    Rule of Civil Procedure 38, California Scents reasonably
    relied on Pestco’s jury trial demand “as to all counterclaims”
    so as to preserve California Scents’s right to a jury trial on the
    claims pled in its complaint.
    We conclude that the district court’s denial of a jury trial
    on California Scents’s claims was error that caused California
    Scents to suffer prejudice. We reverse and remand for trial.
    FACTUAL AND PROCEDURAL BACKGROUND
    I.   The Complaint, Answer, and Summary Judgment
    California Scents manufactures air fresheners for the retail
    market. Its air fresheners are individually packaged “pull top”
    aluminum cans carrying brightly colored “scratch and sniff”
    labels. The labels produce a fragrance that corresponds to the
    name of the air freshener. The names of California Scents’s
    air fresheners, for example “Sierra Meadows” and “Pasadena
    Rose,” are suggestive of various California regions. Pestco
    manufactures a similar air freshener for the retail market.
    California Scents brought suit against Pestco in district
    court, alleging trade dress infringement, unfair competition,
    and false advertising under the Lanham Act, 15 U.S.C.
    4992           CALIFORNIA SCENTS v. PESTCO, INC.
    § 1125(a), and unfair competition under California Business
    and Professions Code § 17200. In its complaint, California
    Scents alleged that it had developed and marketed an “inher-
    ently distinctive and non functional” trade dress for its air
    freshener. California Scents further alleged that after it sent
    Pestco a cease-and-desist letter, Pestco continued to manufac-
    ture a “nearly identical air freshener product, in nearly identi-
    cal color-coded cans, with nearly identical color coded
    ‘scratch and sniff’ labels,” and “exhibited [its] air fresheners
    in counter top display boxes which are nearly identical to
    [California] Scents’s display box.” Finally, California Scents
    claimed that Pestco falsely advertised that it had been in busi-
    ness since 1946. California Scents did not demand a jury trial
    when it filed its complaint.
    Pestco asserted several affirmative defenses and counter-
    claims in its answer. Pestco admitted to manufacturing air
    fresheners such as “Sierra Spruce” and “Rose Parade,” but
    alleged that California Scents’s claims were barred by the
    doctrine of “unclean hands” because California Scents had
    copied Pestco’s distinctive product line. Specifically, in its
    third affirmative defense, Pestco alleged that California
    Scents copied Pestco’s “Nature Scent” product line, which
    consists of “a spill proof wafer impregnated with organic air
    fresheners in a variety of fragrances contained in a recyclable
    aluminum can with a removable ring-top cover and a multi-
    color outer label.” Pestco further alleged that it began manu-
    facturing and selling the distinctive air fresheners at least
    eight years before California Scents came into existence.
    Pestco counterclaimed alleging (1) business disparagement,
    (2) business defamation, (3) conspiracy to disparage and
    defame under California law, and (4) false advertising under
    federal law. Pestco’s first three counterclaims are based on the
    same allegations: that California Scents injured Pestco’s repu-
    tation and sales by falsely representing to sales representatives
    and competitors in the air freshener industry that Pestco “cop-
    ied and/or infringed upon” California Scents’s air freshener
    CALIFORNIA SCENTS v. PESTCO, INC.                  4993
    trade dress. Pestco’s fourth counterclaim is based on the alle-
    gation that California Scents falsely advertised that its product
    contains one-hundred percent natural fragrance oils and made
    contradictory representations about the life-span of its air
    fresheners. The factual allegations in Pestco’s third affirma-
    tive defense, including the contention that California Scents
    copied its trade dress from Pestco, were incorporated by refer-
    ence into each of Pestco’s counterclaims. Pestco demanded a
    jury trial “as to all counterclaims.” The case was set for a jury
    trial in September 2000.
    Pestco moved for summary judgment on California
    Scents’s trade dress infringement and unfair competition
    claims.1 The district court granted Pestco’s motion for sum-
    mary judgment. The district court then granted Pestco’s sub-
    sequent motion to dismiss its counterclaims with prejudice.
    California Scents appealed the grant of summary judgment
    in favor of Pestco. See Cal. Scents v. Surco Prods., Inc., No.
    00-56763, 
    2002 WL 22346
    (9th Cir. Jan. 8, 2002) (unpub-
    lished disposition). We reversed and held that a genuine issue
    of material fact existed on each of the three factors necessary
    to make out a trade dress claim under the Lanham Act. See
    
    id. at *4.
    II.   The Bench Trial
    On remand, California Scents argued that it was entitled to
    a jury trial on its claims for trade dress infringement and
    unfair competition even though it never demanded a jury trial.
    California Scents contended that many of the factual issues
    raised in Pestco’s business defamation and disparagement
    counterclaims were similar to the issues raised in its trade
    dress infringement and unfair competition claims. In other
    words, California Scents believed that Pestco’s jury demand
    1
    The district court dismissed California Scents’s false advertising claim
    in a separate order.
    4994           CALIFORNIA SCENTS v. PESTCO, INC.
    was directed to the same issues raised in California Scents’s
    complaint. California Scents claimed that it was therefore
    entitled to rely on Pestco’s jury demand to preserve its own
    right to a jury trial on its complaint. The district court dis-
    agreed, and ordered the case to be tried as a bench trial.
    After a four day bench trial, the district court ruled for
    Pestco. The court found that California Scents failed to show
    by a preponderance of the evidence that its trade dress was
    nonfunctional, distinctive, or that there was a likelihood that
    the public would confuse Pestco’s and California Scents’s
    trade dress.
    California Scents appeals the district court’s ruling. Califor-
    nia Scents argues that the district court erred in denying it a
    jury trial on its complaint and that the error was not harmless.
    STANDARD OF REVIEW
    Entitlement to a jury trial is a question of law reviewed de
    novo. See Kulas v. Flores, 
    255 F.3d 780
    , 783 (9th Cir. 2001).
    This court reviews de novo a district court’s interpretation of
    the Federal Rules of Civil Procedure. See Atchison, Topeka &
    Santa Fe Ry. Co. v. Hercules Inc., 
    146 F.3d 1071
    , 1073 (9th
    Cir. 1998).
    ANALYSIS
    I.   The Scope of Reasonable Reliance Under Rule 38
    [1] Federal Rule of Civil Procedure 38(b) provides that a
    party seeking to have a disputed issue tried before a jury must
    serve a jury demand upon the other parties “at any time after
    the commencement of the action and not later than 10 days
    after the service of the last pleading directed to such issue.”
    Fed. R. Civ. P. 38(b). A party may “specify the issues which
    the party wishes so tried; otherwise the party shall be deemed
    to have demanded trial by jury for all the issues so triable.”
    CALIFORNIA SCENTS v. PESTCO, INC.             4995
    Fed. R. Civ. P. 38(c). Once a demand has been made, it “may
    not be withdrawn without the consent of the parties.” Fed. R.
    Civ. P. 38(d).
    [2] Rule 38 “has been interpreted as incorporating a right
    of reasonable reliance on the jury demand of another party.”
    In re N-500L Cases, 
    691 F.2d 15
    , 22 (1st Cir. 1982); see also
    Rosen v. Dick, 
    639 F.2d 82
    , 87 (2d Cir. 1980) (“Undoubtedly,
    Rule 38 embodies the equitable principles of reasonable reli-
    ance (for a party seeking to invoke the jury trial right) and
    adequate notice (for the other parties in an action).”). Thus,
    “once one party files such a [jury] demand other parties are
    entitled to rely on that demand for the issues it covers, and
    need not file their own demands.” Fuller v. City of Oakland,
    
    47 F.3d 1522
    , 1531 (9th Cir. 1995); see also 
    Rosen, 639 F.2d at 91
    (“[C]ourts will not require the formal making of a super-
    fluous second demand, nor will they penalize a party who has
    reasonably relied on an existing demand.”).
    [3] The question presented in this appeal is whether the “is-
    sues” raised in California Scents’s complaint were embraced
    by Pestco’s jury demand. See 
    Rosen, 639 F.2d at 92
    (“If the
    first demand does not cover issues pertinent to a second party,
    the second party cannot rely reasonably on the first demand,
    and the second demand would be far from superfluous since,
    without it, the right to a jury trial will have been waived as
    to those additional issues.”). If so, California Scents reason-
    ably relied on Pestco’s jury demand to preserve its own right
    to a jury trial on the claims in its complaint. If not, California
    Scents waived its right to a jury trial on its claims by failing
    to request a jury trial within ten days of the last pleading
    directed to the issues raised in its complaint. See Fed. R. Civ.
    P. 38(b), 38(d).
    [4] In deciding this question, we draw on those cases ana-
    lyzing whether a plaintiff that has waived its right to a jury
    trial on the claims in its complaint may nonetheless be entitled
    to a jury trial on the claims in its amended complaint. See Lutz
    4996            CALIFORNIA SCENTS v. PESTCO, INC.
    v. Glendale Union High Sch., No. 03-15745, 
    2005 WL 797409
    (9th Cir. April 8, 2005); Las Vegas Sun, Inc. v.
    Summa Corp., 
    610 F.2d 614
    (9th Cir. 1979); Trixler Broker-
    age Co. v. Ralston Purina Co., 
    505 F.2d 1045
    (9th Cir. 1974).
    Specifically, these cases focus on whether the amended com-
    plaint raises an “issue” for the purpose of Rule 38(b), not pre-
    viously raised in the original complaint. See, e.g., Lutz, 
    2005 WL 797409
    , at *4 (“If these additional claims were new
    ‘issue[s]’ under Rule 38(b), then [the plaintiff’s] jury trial
    demand . . . was timely as to them.”). And, as these cases
    illustrate, “Rule 38(b) is concerned with issues of fact.” 
    Id. (emphasis in
    original); Trixler 
    Brokerage, 505 F.2d at 1050
    (“Manifestly, the issue contemplated by [Rule 38(b)] is one of
    fact.”).
    Most recently, we considered whether a plaintiff who had
    waived her right to a jury trial on the question of liability in
    her original complaint could nonetheless request a jury trial
    on liability in her amended complaint. See Lutz, 
    2005 WL 797409
    . The plaintiff’s original complaint alleged violations
    of the Americans with Disabilities Act (“ADA”), while her
    amended complaint raised new claims under the Rehabilita-
    tion Act and under Arizona law. 
    Id. at *1,
    *4. We found that
    “there [was] no significant difference in the facts necessary to
    support [the plaintiff’s] original ADA claim and those sup-
    porting her new claims.” 
    Id. at *4.
    Because “ ‘the issues in the
    original complaint and the amended complaint turn[ed] on the
    same matrix of facts,’ ” we concluded that the amended com-
    plaint did not revive the plaintiff’s right to request a jury trial
    on the question of liability. 
    Id. (quoting Las
    Vegas 
    Sun, 610 F.2d at 620
    ).
    [5] Our holding in Lutz followed from our earlier decision
    in Las Vegas Sun. There, we concluded that a plaintiff that
    had waived its right to a jury trial in its initial complaint was
    not entitled to a jury trial for the claims in its amended com-
    
    plaint. 610 F.2d at 620
    . We reasoned that the claims in both
    complaints “share[d] and hinge[d] entirely on the absence of
    CALIFORNIA SCENTS v. PESTCO, INC.              4997
    a legitimate business justification” for the defendants’ con-
    duct, and that both complaints “turn[ed] on the same matrix
    of facts.” Id.; see also Trixler 
    Brokerage, 505 F.2d at 1050
    (holding that the plaintiff had waived its right to a jury trial
    for the claims in its amended complaint where the substance
    of the new claims “[a]t most . . . clarif[ied] the charges
    already made” by “elaborating on the charges of bad faith” in
    the original complaint).
    [6] In cases examining whether a party may rely on the jury
    demand of another party to preserve its own right to a jury
    trial, other circuits have taken a similar approach to defining
    “issue” for the purposes of Rule 38. See 
    Rosen, 639 F.2d at 93-96
    ; In re N-500L 
    Cases, 691 F.2d at 22-23
    . In Rosen, the
    Second Circuit considered whether a defendant was entitled
    to a jury trial based on the jury demand of a 
    co-defendant. 639 F.2d at 83-84
    . The court recognized that a “ ‘defendant can
    rely on the jury demand of a co-defendant to the extent of the
    issues embraced by that demand.’ ” 
    Id. at 93
    (quoting Collins
    v. Gov’t of Virgin Islands, 
    366 F.2d 279
    , 284 (3d Cir. 1966)).
    The court stressed that “the term ‘issue’ means something
    more than the evidence offered and the legal theories pursued,
    although these are pertinent factors,” 
    id. at 94,
    and noted that
    “the initial jury demand . . . will put the other parties on notice
    that a jury . . . will be trying all issues relating to (the) general
    area of dispute,” 
    id. at 96
    (internal quotations and citation
    omitted).
    Applying these principles, the Second Circuit concluded
    that the defendant was not entitled to a jury trial on the plain-
    tiff’s claims on the basis of the co-defendant’s jury demand.
    See 
    id. The defendant
    was charged with willful, reckless, and
    negligent investigation and preparation of an auditing report
    that company directors relied on to their detriment. 
    Id. at 97-
    98. The co-defendant, a company director, was charged with
    willful and negligent failure to report misrepresentations and
    self-dealing of a business partner. 
    Id. at 97.
    The court found
    that there was a “substantial difference in the factual issues
    4998           CALIFORNIA SCENTS v. PESTCO, INC.
    concerning these defendants,” 
    id., and that
    corporate misman-
    agement and self-dealing were distinct issues from negligent
    accountancy, 
    id. at 98.
    The First Circuit used similar reasoning in In re N-500L
    Cases. In that case, relatives of victims of a plane crash sued
    various defendants for losses associated with the crash and
    demanded a jury trial in all 
    cases. 691 F.2d at 18
    . On the eve
    of trial, two defendants, Eastern Airlines and the Federal Avi-
    ation Administration (“FAA”), settled with the plaintiffs and
    assumed all liability but reserved their right to seek contribu-
    tion from the other defendants. 
    Id. Eastern and
    FAA then
    moved for a bench trial on their contribution claims. 
    Id. Two of
    the remaining insurer-defendants objected, claiming that
    they had justifiably relied on the plaintiff’s jury demands. 
    Id. The district
    court held that the insurer-defendants waived their
    rights to a jury trial by not raising a demand in their answers.
    
    Id. The First
    Circuit reversed in part. See 
    id. at 23-24.
    Relying
    on the Second Circuit’s decision in Rosen, the court explained
    that “since justifiable reliance is based on recurring issues, the
    question is, when are issues the same.” 
    Id. at 23.
    The court
    noted that “[t]he definition of an issue for purposes of Rule
    38 is not a matter solely of fact or of law” and that “[o]ne
    issue is the same as another when it is based on the same con-
    duct or concerns the same general area of dispute.” 
    Id. Rely- ing
    on our decision in Las Vegas Sun, the court stated that
    “[i]f the factual allegations underlying two claims are the
    same or if the issues ‘turn on the same matrix of facts’ the
    issues are the same.” 
    Id. (quoting Las
    Vegas 
    Sun, 610 F.2d at 620
    ).
    Thus, the First Circuit held that the insurer-defendants were
    entitled to a jury trial on the issue of their insureds’ liability
    to the plaintiffs for negligence. See 
    id. But because
    the court
    found that the issue of contribution among the defendants
    raised “issues with which plaintiffs were not concerned,” the
    CALIFORNIA SCENTS v. PESTCO, INC.                    4999
    court held that the plaintiffs’ “complaints . . . [could not] rea-
    sonably be read as embracing these other contribution issues
    and reliance on [the plaintiffs’] jury demand for these issues
    [was] not reasonable.” 
    Id. at 24.
    Here, both parties believe that “[t]he test for determining
    whether a request for a jury on a counterclaim entitles a party
    to a jury trial on the complaint is whether the counterclaim is
    compulsory, that is, whether it arises out of the subject matter
    of the plaintiff’s legal claim.” 8 James Wm. Moore et al.,
    Moore’s Federal Practice ¶ 38.50[9][c] (3d ed. 1999); Park
    Club, Inc. v. Resolution Trust Corp., 
    967 F.2d 1053
    , 1057
    (5th Cir. 1992). We do not need to decide, however, whether
    Pestco’s counterclaims were compulsory to resolve the pres-
    ent dispute.2
    [7] Rather, we decide only whether Pestco’s counterclaims
    embraced the same “issues” within the meaning of Rule 38 as
    the claims in California Scents’s complaint. If so, California
    Scents’s reliance on Pestco’s jury demand was reasonable and
    2
    We recognize that the tests to determine whether an “issue” is the same
    for Rule 38 purposes discussed in Las Vegas Sun, Rosen, and In re N-500L
    Cases, are similar to this court’s test for determining whether a counter-
    claim is compulsory. Compare, e.g., Las Vegas 
    Sun, 610 F.2d at 620
    (con-
    cluding that issues are the same for purposes of Rule 38 when they “turn
    on the same matrix of facts”), with Pochiro v. Prudential Ins. Co. of Am.,
    
    827 F.2d 1246
    , 1249 (9th Cir. 1987) (noting that a claim is considered
    compulsory where “the essential facts of the various claims are so logi-
    cally connected that considerations of judicial economy and fairness dic-
    tate that all the issues be resolved in one lawsuit”) (internal quotation and
    citation omitted). Nevertheless, we express no view as to whether Pestco’s
    counterclaims were compulsory.
    Accordingly, we need not decide whether we agree with the reasoning
    in the line of cases cited by Pestco that hold that “a counterclaim which
    stems from the filing of the main action and subsequent alleged defama-
    tions is not a compulsory counterclaim covered by Rule 13(a).” Harris v.
    Steinem, 
    571 F.2d 119
    , 124 (2d Cir. 1978); see also Computer Assocs.
    Int’l, Inc. v. Altai, Inc., 
    893 F.2d 26
    , 29 (2d Cir. 1990); 
    Pochiro, 827 F.2d at 1251
    n.9 (discussing cases).
    5000            CALIFORNIA SCENTS v. PESTCO, INC.
    it was not required to make its own jury demand to preserve
    its right to a jury trial on the issues raised in its complaint. See
    
    Rosen, 639 F.2d at 92
    ; In re N-500L 
    Cases, 691 F.2d at 24
    .
    In examining this question, we “indulge every reasonable pre-
    sumption against waiver” of the jury trial right. Aetna Ins. Co.
    v. Kennedy ex rel. Bogash, 
    301 U.S. 389
    , 393 (1937).
    II.   California Scents’s Reliance on Pestco’s Jury
    Demand
    [8] The legal issues asserted by each party are distinct, as
    is evident from a comparison of the elements of the parties’
    respective claims. To prevail in its business defamation and
    business disparagement counterclaims, Pestco would have
    had to prove facts that were unnecessary to California
    Scents’s trade dress infringement claims, and vice-versa.
    Compare 4 J. Thomas McCarthy, McCarthy on Trademarks
    & Unfair Competition § 27:99 (4th ed. 2004) (defining ele-
    ments of common law product disparagement as (1) publica-
    tion, (2) of a false and disparaging statement of fact about the
    product of plaintiff, (3) made with either knowledge of falsity
    or with reckless disregard of its truth or falsity, (4) with intent
    to harm plaintiff’s interest, and (5) specific damages), with
    Disc Golf Ass’n v. Champion Discs, Inc., 
    158 F.3d 1002
    , 1005
    (9th Cir. 1998) (requiring plaintiff in trade dress infringement
    suit to prove that (1) the trade dress is nonfunctional, (2) the
    trade dress is inherently distinctive or acquired distinctiveness
    through secondary meaning, and (3) there is a likelihood that
    the public will confuse the alleged infringer’s trade dress with
    that of the plaintiff’s).
    [9] Nonetheless, we conclude that Pestco’s business dispar-
    agement and business defamation counterclaims and Califor-
    nia Scents’s trade dress claims “turn on the same matrix of
    facts,” Las Vegas 
    Sun, 610 F.2d at 620
    , and “concern[ ] the
    same general area of dispute,” In re N-500L 
    Cases, 691 F.2d at 23
    . Aside from their false advertising claims, the basic dis-
    pute between the parties concerns whether Pestco infringed on
    CALIFORNIA SCENTS v. PESTCO, INC.             5001
    California Scents’s trade dress. The facts relevant to that dis-
    pute were central not only to California Scent’s claims for
    trade dress infringement and unfair competition, but also to
    Pestco’s counterclaims for business disparagement and busi-
    ness defamation. Indeed, Pestco would have been required to
    prove as part of its disparagement and defamation counter-
    claims that California Scents’s statements—that Pestco
    infringed on or copied California Scents’s trade dress—were
    untrue or misleading. See Fin. Programs, Inc. v. Falcon Fin.
    Servs., Inc., 
    371 F. Supp. 770
    , 776 (D. Or. 1974) (“To support
    a claim of commercial disparagement, a plaintiff has the bur-
    den of establishing that the defendant has made untrue or mis-
    leading statements which disparage the quality of the
    plaintiff’s product or services.”); 4 McCarthy on Trademarks
    at § 27:103 (“The plaintiff in a commercial disparagement
    claim always bears the burden of proving that the alleged dis-
    paraging statement is substantially false or misleading.”).
    [10] The substantial factual overlap underpinning the par-
    ties’ respective claims compels our conclusion that Pestco’s
    jury demand on its counterclaims was directed, at least in part,
    to the same “issues” as California Scent’s complaint. On this
    basis, we hold that California Scents’s reliance on Pestco’s
    jury demand to preserve its own right to a jury trial on its
    complaint was reasonable. See 
    Rosen, 639 F.2d at 92
    ; In re N-
    500L 
    Cases, 691 F.2d at 24
    . Therefore, the district court erred
    in concluding that California Scents was not entitled a jury
    trial on its trade dress and unfair competition claims.
    III.   Harmless Error Analysis
    “The erroneous denial of a jury trial in a civil case is sub-
    ject to harmless error analysis.” 
    Fuller, 47 F.3d at 1533
    . “The
    denial will be harmless only if ‘no reasonable jury could have
    found for the losing party, and the trial court could have
    granted a directed verdict for the prevailing party.’ ” 
    Id. (quot- ing
    Davis & Cox v. Summa Corp., 
    751 F.2d 1507
    , 1516 (9th
    Cir. 1985)).
    5002           CALIFORNIA SCENTS v. PESTCO, INC.
    [11] In the earlier appeal of this case, we concluded that
    California Scents provided sufficient evidence to raise a genu-
    ine issue of material fact for each of the three factors needed
    to make a trade dress claim against Pestco under the Lanham
    Act. Though the district court concluded at the end of the
    bench trial that California Scents had not proved by a prepon-
    derance of the evidence that Pestco had infringed on its trade
    dress, we cannot say on the record before us that “no reason-
    able jury could have found for [California Scents].” 
    Id. (inter- nal
    quotation omitted). Accordingly, we conclude that the
    erroneous denial of a jury trial to California Scents was not
    harmless. See 
    id. CONCLUSION We
    conclude that the district court erred in denying Cali-
    fornia Scents a jury trial on its complaint. Furthermore, we
    conclude that the error was not harmless.
    The parties will bear their own costs on appeal.
    REVERSED and REMANDED.