Hershey asks a federal judge to declare that its free app does not infringe on a rival's paid one.
Many a fight has been waged over a glass of chocolate milk, but this may be the first to end up in court.
Hershey has filed a lawsuit asking a federal judge to declare that its Chocolate Milk iPhone application does not infringe on the trademark of a similar app by Hottrix, a software company in Las Vegas. Both apps appear to fill an iPhone screen with chocolate milk that the user can virtually "drink."
After Hershey debuted its app in October, Hottrix sent the company a "cease and desist letter" claiming it infringed on its copyright.
But Hershey says the differences between the two apps are significant.
"The Hershey application includes screen images of a HERSHEY'S Syrup container," says the suit, "the chocolate syrup being squeezed from the Hershey's Syrup container," and a red-and-white straw - similar to the one found on real-life bottles of Hershey's syrup - "to permit the virtual chocolate drink to be sipped by pressing the straw on the screen, which simultaneously creates a slurping sound." Hershey filed the suit in U.S. Middle District Court in Harrisburg, PA.
Users of Hottrix's iMilk app, however, must turn the iPhone upside down to simulate drinking the milk. That application also features plain and strawberry milk.
Jason H. Fisher, Hottrix's lawyer, said his client had filed a countersuit on Monday and would vigorously defend its trademark.
"It's substantially similar," he said of the Hershey's app. "You can't just add a straw and say it's not the same."
Hershey did not immediately return a call seeking comment.
Raising the stakes for Hottrix is the fact that Hershey is offering its app for free, whereas Hottrix has been charging $3 for iMilk. Hottrix's counterclaim says that Hershey's application has cost it $12 million in lost revenue.
"The amount of revenue that my client makes off the app is significant," said Fisher. "We're not talking about seven figures, we're talking about eight figures."
Hershey also claims that Hottrix accused it of stealing the programming code for iMilk, an accusation that Hershey says is false.
This is not the first time that Hottrix has had to fend off big-brand competitors. In 2008, it filed a lawsuit against Coors claiming that the brewer's iPint app infringed on Hottrix's popular iBeer app, which appears to fill the iPhone screen with beer. That suit was settled for an undisclosed sum.
Follow Douglas Quenqua on Twitter at @DQuenqua.
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Douglas Quenqua is a journalist based in Brooklyn, NY who writes about culture and technology. His work has appeared in The New York Times, Wired, The New York Observer, and Fortune.
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