points of like to bring the court's attention as it is i see it as i regret it this morning and reconsidered what your honour's are considering first is very clear that the parties always treated this from back in november ninety nine of the court treated it as being on the docket as a jury trial you might ask me if you want to why didn't i request a jury demand in the complaint on offense i can't remember it was been on this case since ninety five i can't remember why the complaint did not have a command but the counterclaim did does it have to be a compulsory counterclaim no have to the issues of the same record your honour's will recall that early on in this case we made a strategic decision to take a deposition soley on the counter claim not on the thirteen of the counterclaims which is paired up thirteen of the ones in the first cause of action and the second and incorporated into the third which is that our allegations of i asked a series of four questions regarding that paragraph thirteen on the counterclaim only and at the bottom of the fifty three of the excerpts of record magistrate not this i don't notice jeffrey p ward one nauseum and quote when california sense read a post tesco in connection with the foreman of defenses he offered to allow blah blah if you have some counter claims which are involved with the same issues or matrix of the facts as the complaint but some that are not like the false advertising i don't see how it's going to do a tree dress what about the no jury trial right on those perhaps interest only so you would get a jury trial on the issues that were the same but not great rest of sara lee on the other issues which is all that really went to trial judge reed i mean the interesting thing here was they dismissed the counter complaint which says you infringe our trade with us further on the compulsory kind of playing since if we prevailed on a complaint and shown that they did infringe on our trade dress that would per se be a defense to any counter  was continued and the matter was drawn as a jury trial that is docket one eighty three the parties provincially came here to this courtroom and were sent back at the spreading of the mandate this case was against that down on doctor to seventeen as going forward there was no discussion even of the spreading of the mandate when the trial date was set but this was not a jury trial so even after the counter cla the first time this issue was a raise was when we were preparing the pretrial papers in later two thousand to a recent three up but the title is really getting ready for trial and that's what the posing brief judge decision was one for discovery but not binding on trial and that was an important point to bring up the judge made this decision about jury trial before there was any trial so  for the defendant who had filed a counterpoint said mr brower you can't ask questions that's exactly ad nauseum what you're going to ask me when i come to the complaint so mr ward had clearly position that they somehow don't see a real issue of issues when they were so sure they're related that they allowed us to come home to california and lose a motion on that subject is somewhat disingenuous the issues are clearly overlapping i guess not i would like to briefly touch unless you have other questions on the whole issue of prejudicial i think the legal standard is pretty clear the night circuit and fuller person of oakland says that on the thirteen as he refers to finding by preponderance of the evidence not any kind of legal conclusion and it maxine page where he said he would does not want to see any findings of fact inclusion honorable district judge necessarily wrong i don't want to say that i don't need to say that but if the standard is well you're only entitle to a jury trial if you can prove that the judge was wrong that abrogates the right to a jury trial and luckily no from the ninth circuit itself that is not the standard if you're a trial right is one that we are reviewing court is required to indulge every reasonable counsel for defendant to be totally interrelated the magistrate agreed with them and agreed with them so much we told him to go back and let us take the deposition a fair reading makes it very easy if you look at paragraph twelve of the counterclaim three day estimate for bench trial by this one for jury trial find it necessary to do this and he found for example that he didn't think there was evidence of like with confusion yet the ninth circuit three three brethren did find lack in their written opinion to bake sent back to him that included and we have it in our brief i won't read it to you the testimony of their national sales manager who said i go to customers may think our stuff is their stuff why because it looks just like their stuff that is in the brief that was tesla going to trial their national sales manager well what do they assume they simply took their stuff because it looks just like ours federal civil procedure is are the issues substantially related and that's precisely the proper test that the district court judge here applied the dozen of the or the order he issued on this issue is that the  excerpt of record page sixty eight paragraph five says the it used to be tried in the complaint and affirmative defenses are not substantially the same as the issues in the withdrawn counter claim that matches the language of rule thirty eight and in fact that reflect statements to whom did they make those statements and when were the statements made none of those facts are relevant or are part of a trade dress infringement claim instead for trade dress infringement you have an entirely different set of fact which is what is the nature of the trade press here it's a little canned for some sort of scent what is the product lead law on there what color is the label what kind of tie face does it has whether advertisers for that label or that product with those advertisements as being the same matrix of facts while your honor i think that if and i'm not certain if that's a nice circuit opinion i'm not familiar with if it's a district court within the ninth circuit the way i'm not familiar with it is a nice or to opinion for whatever reason the whether it's considered metric the facts are facts so logically connected you're not going to have that test satisfy here because that's like that the counter claims for defamation are things significantly unitary different from your honor for that proposition there are a lot of cases that the knights organise recognised and that the second circuit is recognised as standing for the proposition that whatever overlap there is with regards defamation to claims regarding the or claim alleging defamation based on the complaints is not a compulsory counter claim because in every instance where you have that for example any kind you have a defamation claim in which relates to the misrepresentations about the prove the counter claims in the claims and the facts that you would need to support that are essentially different fossils for those reasons i think your honor you would have under either the rule thirty eight test or the compulsory counterclaim test  what representations were made that defamed us who made them today make them and when were they made those are the kind of fact you need to establish to prove defamation or business disparagement that's an entirely different set of facts than what you have to prove t indifference and course of sounds so different that it's different for example the second circuit in the seminal case on this the harris case have the similar situation where they had not trade dress but they had a and a defamation count related to those violations and the court found that in order to establish defamation there are elements you need to show and those elements are fundamentally different from whatever elements you need to establish to show violation of securities laws and for that rea the second circuit determined at that since defamation count was not the definition counterclaim was not a compulsory counterclaim in fact the first second circuit even recognized that there would be some sort of collateral estoppel rescue to cause us back on this from new york determined that they weren't so logically connected and that's precisely what you have here now those are the only cases that either side is found that deals with the situation where you have intellectual property claims in a complaint and defamation counter applied in computer science and thoroughly discusses whether that test is the saying as the task of the court this court applied for chiro and it is absolutely clear from the ruling of the premier that computer science the second adopted verbatim the test that the second circuit sets forth in harris so those cases from the second circuit are completely applicable here because they're applying the very same test th presentation when it's an excursion on the docket entries and their brief for this court says they have been is that there's some discussion of it in the in the background fast action but there's no argument on that and it's for good reason that if the class helstone said pet pursue that argument with the district court but it's clear and we decided to cases for the district court that show that you cannot rely on an incorrect documentary there is no talismanic significance to the injury  documentary if you don't have a right to jury trial you can't create that by having an erroneous documentary and here there was accurate to be on the jury documentary cause we have requested a jury trial or counterclaims the fact that it wasn't changed after we dismissed as counter claims doesn't change the fact that there is no right to jury trial you know the callouses cannot create for themselves the right to a jury trial because the clerk at the docket did not amend that docket entry after we dismissed our counter was correct initially in saying that there was a jury trial because we had asked one of our counter claims subsequently we dismiss this kind of things with presidents so the documentary at that point should have been corrected to say no there is no jury trial but instead it was not i i can tell the court this in we did have oral we have status conference with the district court judge progress following the first appeal to this court and it was during that status conference or maybe there's an oral argument i think jury trials so it would have been something that the district court with a clerk would have done so this vontae as a result of that status conference and so i think it's more likely invest i'm just guessing here i mean we're looking at the application of  and those kinds of that kind of evidence is something that the courts in the ninth circuit in the second circuit have recognized doesn't provide a basis for saying that the claims are substantially similar because you're talking about claim is the paddock defamation kind of claims arise from if you went forward with your current claim what facts would you have to prove right i would have to be able to prove what was said by the other side and who they say that to and when did they say those things and were those things in here is the element which comes back to the traitorous for those things true but for the facts that are essential for my claim most of those have nothing to do with traitorous infringement and will never be part of a tra the logically connected facts that are logically connected and as the court found in from puter science and in four seasons and inherits defamation counterclaims are not so logically connected with their and their facts that they are does not involve a trade press infringement or any type of intellectual property claim it's a business conversion type claim so the nature of that claim is different from what we have here and put your i submit your honor you've got a different situation there it's irrelevant who came up with it first the question is is it in title the protection is it functional does it have inherent meaning is there likely to confusion all that entire analysis which we've gone through several times now both in the district court and in front of th separate world from defamation now where they become overlapping is where the defamation claim arises from the fact that some of the spire of a trade press infringement complaint and so for sure you're going to have some overlap there but logically connected and one final point i'd like to make if i can is that it's opposing counsel raises so i'd like to address this this court has never in this case addressed or elements of the traders were functional certain and that trade press was not entitle to be treated as inherently distinctive but all the elements that i discussed in our brief about like the confusion the nice circuit as a procedural matter could not determine any findings the fact that those factors weighed in favor of the plaintiffs that was all still to be determined by the district court and that's just because a procedural posture of the case that when it came in this court with or by fury ok thank he finds that it's not pepco complained that we were trying to depose them on their can a claim and learn about our complaint he says that's not mr browers fault it's your fault for drafting a counterclaim which so clearly blurs the distinction between the the trial would not spend a week on whether or not she told her friend would not spend a week on the date she told a friend of not spent a week on whether she meant that it was spent a week or a month or a year on whether or not in fact it was a true statement does show it is jury our point was that submission rule thirty eight says the clerk puts it down as jury correctly which it was correctly put down it stays there until waived in writing by parties my point was we came back of the final appeal and that we didn't we were not aware we did not taking high risk we were not aware of any appeal right off of that order you know what i'm talking about is i just didn't know where that order came from if if you believed in favor of a jury trial