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The iPhone Drink App Intellectual Property Litigation Wars

Being a sorry excuse for an iPhone user -- I don't have a single game downloaded on my phone and use the bare minimum of apps on a regular basis -- I was naturally surprised to learn that not only are there iPhone apps that will virtually transform your cell phone into the beverage of your choice, but that such a thing is popular enough to inspire intellectual property litigation.

Via techdirt, here's the tale of two iPhone apps -- developer Hottrix's "iMilk" and The Hershey Co.'s "HERSHEY Chocolate Milk" -- that can quench your, um, "thirst" for the frosty beverage. (Hottrix also offers iBeer and iSoda if you're craving something less wholesome.) Hershey sued seeking a declaratory judgment that its app didn't infringe Hottrix's copyrights on iMilk, and Hottrix counter-sued with a number of claims, including copyright infringement, unfair competition and tortious interference, alleging that Hershey copied the "look and feel" of iMilk. Techdirt reports that Hottrix filed a similar case against Coors a few years back over its virtual beer app. (Shannon Duffy of The Legal Intelligencer also covers the iMilk case in this article.)

Now a federal judge in Pennsylvania has denied Hershey's motion to dismiss and ruled that Hottrix can proceed with its suit. Techdirt's Mike Masnick is very skeptical about the merits of the case, calling it a "huge waste of court resources" and maintaining that "Hottrix doesn't deserve a total monopoly on 'drinking' apps." It will be interesting to see how the dispute pans out, and we're likely to see more suits of this type in the future. As the ruling points out, Apple's revenue from app sales is in the billions and likely climbing after introduction of the iPad. "This is big business by anyone's measuring stick," the judge wrote, "which explains why the combatants here would bring a dispute involving computer-generated images of milk, chocolate, and syrup to federal court."

I am left a little bit intrigued by which of the apps offers the most satisfying virtual imbibing experience. Apparently one "drinks" from the iMilk app by tipping the phone/glass sideways, while Hershey's helpfully offers a straw. Shaking the phone using iMilk produces whipped cream or cheese, while Hershey's provides -- what else -- chocolate syrup. Not sure my curiosity extends to shelling out $2.99 for iMilk, however -- and I'm unconvinced that my phone is the best source for that recommended daily calcium.

Written by Laurel Newby, Law.com's courts editor.

Posted by Laurel Newby on January 12, 2011 at 12:20 PM | Permalink | Comments (2)

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