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Hershey Defends Chocolate Milk App with Preemptive Lawsuit

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Photo by Eric Savage on Flickr

Photo by Eric Savage on Flickr

Hershey’s Chocolate Milk iPhone application allows users to pour a virtual glass of milk, add chocolate, blow virtual bubbles with a straw, and end the entire event with a mooing sound. Sounds fun, right? Well Hershey is worried that Hottrix LLC, the maker of the iMilk app, may eventually come after the chocolate giant alleging copyright infringement, so Hershey’s has filed a lawsuit asking a court to preemptively rule there is no such infringement.

Hershey’s concern doesn’t come out of thin air, either. Last December, when Hottrix heard about Hershey’s app, they sent a letter demanding that the chocolate giant remove its app from Apple’s online store because of copyright infringement. Hottrix alleges that Hershey had actually approached the software development company about programming such an app and that its efforts to negotiate a licensing agreement with Hershey weren’t acted upon.

Hershey, though, maintains that its app, which was released a year after iMilk, doesn’t use the programming of iMilk, and that Hottrix can’t claim a copyright on the idea of a virtual glass of milk. According to the lawsuit, “Although both reflect the idea of using an iPhone screen to create a virtual milk drink, the actual execution of the Hershey’s Chocolate Milk iPhone application is very different than that of the Hottrix applications.”

Hottrix, which calls itself a “mom and pop company,” vows to fight the suit, and has promised to file a counterclaim for copyright infringement; in 2008, the company also fought Coors Brewing Co. over its virtual beer drinking app (iPint) after Hottrix had released iBeer. That battle was settled out of court.

The Hershey app, by the way, is free, while iMilk costs $0.99, as according to its entry at the iTunes store, “HERSHEY’S Food Corporation stole our app. Let’s party and ‘knock off’ $2.00 to go with the theme….”

This is the second time Hershey has been in the legal news recently; you may remember that we previously discussed Hershey’s lawsuit against Williams Sonoma over a brownie pan.

What do you think? Who wins the milk app battle?

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September 14th, 2010 at 10:53 am