Hershey may be the king of chocolate milk in the supermarket aisles, but when it comes to the digital world, the Pennsylvania company has an unexpected small challenger. Hottrix is a Las Vegas app developer that has created several “virtual drinking” apps including iBeer, iMilk and iSoda. This week, a federal judge ruled that Hottrix can proceed with a copyright lawsuit alleging that an app developed by Hershey that lets iPhone users mix virtual chocolate milk is an infringement of Hottrix’s earlier iMilk app, which inventor Steve Sheraton began marketing in 2007.
As the app market grows, intellectual property lawsuits of the “who-invented-what-first” variety are sure to follow that growth. The judge himself opens the discussion of his reasoning with an acknowledgement of the undeniable significance of the $2.4 billion mobile application industry, writing: “This is big business by anyone’s measuring stick, which explains why the combatants here would bring a dispute involving computer-generated images of milk, chocolate, and syrup to federal court.”
In this case, a technology director at Hershey reached out to Hottrix in 2008, writing an email saying “I like your iMilk app,” and asking about possibly making a version for Hershey’s with chocolate syrup incorporated into the system. But those negotiations apparently fell apart, and Hershey ultimately hired another software vendor to make a chocolate milk app. In December 2009, Hottrix’s lawyer sent a cease and desist letter, saying that Hershey’s syrup app was an illegal knockoff. Hershey then filed papers in court asking a judge to rule that it hadn’t infringed Hottrix’s copyright. Hottrix counter-sued and the dispute is now in full swing.
Hershey asked to dismiss the Hottrix claims, arguing that it developed its app independently and saying that there’s nothing legally protectable in the idea of apps that allow iPhone owners to drink virtual milk. But Hottrix’s lawyer says the company wasn’t trying to sue over the “idea” and argued that Hershey had infringed specific “protected elements” of the expression. The Pennsylvania federal judge overseeing the case hasn’t ruled on the merits, but agreed that Hottrix has sufficiently plead its case and is allowing its copyright claim to move ahead.
Hottrix’s lawyer didn’t get back to me immediately, but you might want to drop Hottrix a line before you think of marketing anything that has to do with drinking virtual milk, beer, soda, or eating any iMunchies. Because as the (trademarked) saying goes-there’s an app for that.
» Order in The Hershey Company v. Hottrix LLC [PDF]