Ruling Keeps Glass Half Full for iMilk App Copyright Claim

In a court battle over the rights to an iPhone app that converts a phone into a virtual glass of milk, a federal judge in Harrisburg, PA, has ruled that the creator of the iMilk app (http://itunes.apple.com/us/app/imilk/id284941606?mt=8) may pursue claims against Hershey for copyright infringement, trade dress and tortious interference.

In his 14-page opinion in The Hershey Co. v. Hottrix, U.S. District Judge John E. Jones III found that cell phone applications, or apps, are a burgeoning and lucrative enterprise.

Apple boasted about $2.4 billion in sales of apps for its iPhone in 2009, Jones noted, and the introduction of the iPad in 2010 is sure to drive that figure even higher.

“This is big business by anyone's measuring stick,” Jones wrote, “which explains why the combatants here would bring a dispute involving computer-generated images of milk, chocolate, and syrup to federal court.”

Hershey came to court first seeking a declaratory judgment that its Hershey's Syrup app (http://itunes.apple.com/us/app/hersheys-chocolate-milk/id335617752?mt=8) does not infringe on Hottrix's copyrights for the iMilk app.

Hottrix, which also markets the iBeer and iSoda apps, responded with counterclaims alleging that Hershey took the code for iMilk and modified it to create its own virtual milk app that mimics the “look and feel” of iMilk.

According to court papers, both apps allow users to generate an image of a glass of milk on the iPhone screen that appears to be drunk by the user, either when the phone is tipped or through a virtual straw. The Hershey app includes a feature that allows users to add chocolate syrup.

Hershey's lawyers ' Harvey Freedenberg and Alan R. Boynton Jr. of McNees Wallace & Nurick in Harrisburg, along with Thomas A. Smart and Paul C. Llewellyn of Kaye Scholer in New York ' moved to dismiss all of the counterclaims.

In the motion, Hershey argued that Hottrix's copyright claims fail as a matter of law because it has no copyright interest in the underlying ideas and because Hershey's app is not substantially similar to any protectable aspect of the iMilk app.

Now Jones has rejected all of Hershey's arguments, finding that its team of lawyers seemed to be confusing the standard for a motion to dismiss with that of summary judgment.

“The arguments seem to advance that Hottrix is unable to prove its claims rather than plead its claims, and such an analysis is inappropriate at this stage,” Jones wrote.

Hottrix's lawyers ' Robert J. Tribeck and Todd J. Shill of Rhoads & Sinon in Harrisburg, along with Jason H. Fisher of Fisher Law Group in Los Angeles ' argued that the copyright claim is valid because Hottrix is not misguidedly seeking to protect the “idea” of a milk-drinking app, but rather has properly pleaded that Hershey has allegedly infringed the protected elements of the expression.

Jones agreed, finding that “despite the differences that Hershey attempts to highlight, Hottrix characterizes the level of specificity with which the court should view the applications differently, and thus alleges their substantial similarity.”

Hottrix also alleged a valid claim of trade dress infringement under the Lanham Act, Jones found, by alleging that Hershey capitalized on Hottrix's consumer good will and product recognition.

Hershey argued that the trade dress and unfair competition claims must fail because they are pre-empted by the Copyright Act.

But Hottrix argued that its trade dress claims under Pennsylvania's Unfair Competition law and the Lanham Act both allege wrongs that are separate and distinct from those alleged under the Copyright Act.

Jones agreed, saying “several courts have concluded that claims for copying the 'look and feel' of a Web site under the Lanham Act would not interfere with copyright interests.”

In a court battle over the rights to an iPhone app that converts a phone into a virtual glass of milk, a federal judge in Harrisburg, PA, has ruled that the creator of the iMilk app (http://itunes.apple.com/us/app/imilk/id284941606?mt=8) may pursue claims against Hershey for copyright infringement, trade dress and tortious interference.

In his 14-page opinion in The Hershey Co. v. Hottrix, U.S. District Judge John E. Jones III found that cell phone applications, or apps, are a burgeoning and lucrative enterprise.

Apple boasted about $2.4 billion in sales of apps for its iPhone in 2009, Jones noted, and the introduction of the iPad in 2010 is sure to drive that figure even higher.

“This is big business by anyone's measuring stick,” Jones wrote, “which explains why the combatants here would bring a dispute involving computer-generated images of milk, chocolate, and syrup to federal court.”

Hershey came to court first seeking a declaratory judgment that its Hershey's Syrup app (http://itunes.apple.com/us/app/hersheys-chocolate-milk/id335617752?mt=8) does not infringe on Hottrix's copyrights for the iMilk app.

Hottrix, which also markets the iBeer and iSoda apps, responded with counterclaims alleging that Hershey took the code for iMilk and modified it to create its own virtual milk app that mimics the “look and feel” of iMilk.

According to court papers, both apps allow users to generate an image of a glass of milk on the iPhone screen that appears to be drunk by the user, either when the phone is tipped or through a virtual straw. The Hershey app includes a feature that allows users to add chocolate syrup.

Hershey's lawyers ' Harvey Freedenberg and Alan R. Boynton Jr. of McNees Wallace & Nurick in Harrisburg, along with Thomas A. Smart and Paul C. Llewellyn of Kaye Scholer in New York ' moved to dismiss all of the counterclaims.

In the motion, Hershey argued that Hottrix's copyright claims fail as a matter of law because it has no copyright interest in the underlying ideas and because Hershey's app is not substantially similar to any protectable aspect of the iMilk app.

Now Jones has rejected all of Hershey's arguments, finding that its team of lawyers seemed to be confusing the standard for a motion to dismiss with that of summary judgment.

“The arguments seem to advance that Hottrix is unable to prove its claims rather than plead its claims, and such an analysis is inappropriate at this stage,” Jones wrote.

Hottrix's lawyers ' Robert J. Tribeck and Todd J. Shill of Rhoads & Sinon in Harrisburg, along with Jason H. Fisher of Fisher Law Group in Los Angeles ' argued that the copyright claim is valid because Hottrix is not misguidedly seeking to protect the “idea” of a milk-drinking app, but rather has properly pleaded that Hershey has allegedly infringed the protected elements of the expression.

Jones agreed, finding that “despite the differences that Hershey attempts to highlight, Hottrix characterizes the level of specificity with which the court should view the applications differently, and thus alleges their substantial similarity.”

Hottrix also alleged a valid claim of trade dress infringement under the Lanham Act, Jones found, by alleging that Hershey capitalized on Hottrix's consumer good will and product recognition.

Hershey argued that the trade dress and unfair competition claims must fail because they are pre-empted by the Copyright Act.

But Hottrix argued that its trade dress claims under Pennsylvania's Unfair Competition law and the Lanham Act both allege wrongs that are separate and distinct from those alleged under the Copyright Act.

Jones agreed, saying “several courts have concluded that claims for copying the 'look and feel' of a Web site under the Lanham Act would not interfere with copyright interests.”