Got Milk? According to Hottrix LLC, it does, at least in the virtual world. Hottrix is the creator of the iMilk iPhone Application; an app that simulates a glass of milk filling up and users may “drink” the milk by tipping the iPhone. The iMilk App, which was developed in 2008 and is available from iTunes for $2.99, is at the center of an ongoing copyright battle in the US District of the Middle District of Pennsylvania between Hottrix and Hershey Co. Hershey offers a “Hershey’s Chocolate Milk” iPhone App that allows users to add Hershey’s syrup to a virtual glass of milk. The Hershey App is offered for free.
The legal battle began in December 2009 when, after licensing negotiations between the parties failed and Hershey launched the Hershey App, Hottrix sent a cease and desist letter to Hershey claiming that the Hershey App utilized a modified version of the copyright protected iMilk App code and demanding that Hershey cease offering its app. Hershey responded by filing a Declaratory Judgment action in June 2010 in the US District Court for the Middle District of Pennsylvania seeking a ruling that its Hershey App does not infringe the copyright held in the iMilk App. Hershey argues that its Hershey App was created independently, that the idea of a virtual glass of milk is not protectable, and that there are not substantial similarities between the two apps. Specifically, Hershey claims that the Hershey App allows users to pour chocolate syrup into the milk, adds a spoon to stir the chocolate milk, and allows users to “slurp” the milk by pressing on a straw that is inserted into the milk. Further, users may blow bubbles into the drink by blowing on the mouthpiece of the iPhone. None of these features are available in the iMilk App.
Undaunted by the preemptive action by Hershey, Hottrix recently responded with counterclaims of copyright infringement, unfair competition, trade dress infringement, and tortuous interference with prospective economic advantage. Hottrix claims that Hershey copied the code for the iMilk App after licensing negotiations between the parties broke down, that the Hershey App is a derivative work of the iMilk App, and that the free Hershey App dilutes the market. Hottrix is claiming more than $12 million in damages, including lost profits and tarnishment.