As our readers may remember, we previously discussed the battle royal shaping up over an iPhone application (app) that mimics milk in an iPhone “glass.” While seemingly amusing, the app business is big business with Apple reporting sales of 2.4 billion dollars in apps in 2009. Further, the issue of what constitutes the “look and feel” of an app will have significant repercussions for the app industry.
You may recall that Hottrix created and distributed an app in which milk appears to fill the iPhone glass. Shaking the glass creates cream, while tipping the glass drains the milk as if it was being drunk. Hottrix filed copyright applications on the app and sells the app through Apple’s store.
Hershey later created a similar app that pours milk into the glass. The app then introduces a bottle of chocolate syrup that allows syrup to be poured into the milk which may then be drunk through a straw thereby draining the glass. Hershey gives it app away for free through the Apple store.
In a preemptive move, Hershey filed suit in federal court in Harrisburg seeking a declaratory judgment that its app did not infringe any copyright interest of Hottrix. Hottrix responded with counterclaims for copyright infringement, unfair competition, trade-dress infringement, and tortious interference with prospective economic advantage. Hershey moved to dismiss Hottrixís counterclaims essentially asserting that Hottrix had no protectable copyright interest and that the other claims were preempted by copyright law.
The judge in the case has now dumped cold milk on Hershey for failing to follow the rules of civil procedure. The court noted that Hershey’s motion for dismissal inappropriately pled a different type of motion with different requirements, specifically a motion for summary judgment. A motion for dismissal requires that no allegation by Hottrix was sufficient to put Hershey on notice of Hottrixís claims. The judge noted that Hershey’s arguments: “…advance that Hottrix is unable to prove its claims rather than plead its claims, and such an analysis is inappropriate at this stage.” The court found that Hottrix had, indeed, plead sufficient facts to entitle it to relief if it could subsequently prove its copyright infringement case. In addition, the court found that Hottrix’s other counterclaims were not preempted by copyright. In particular, the court concluded that Hottrix’s allegation that Hershey had taken the “look and feel”of Hottrix’s app was sufficient to permit the additional claims for unfair competition, trade- dress infringement, and tortious interference to proceed.
So keep the hot chocolate brewing in this cold weather and wait for Spring weather to bring out the milk (plain or chocolate).
— Laurence Weinberger, Esq.