(For the purpose of enjoying a current dispute involving apps for mobile devices, remember that copyright protects an expression of an idea, not the idea itself.)
Hottrix LLC sold an iPhone app (iMilk) for $2.99 that, when launched, displays a red button that when touched fills the screen from the bottom up (gurgling) with white milk. Tilting the iPhone drains the milk (into your “mouth”). Shaking the (iPhone) milk turns it to a stiff cream – reversible to flowing milk by touching the glass. A cute ad for the app displays a milk mustache on a model. In 2008, Hottrix filed two copyright registrations for iMilk: one for the iMilk video and sound, and one for the computer code.
Hershey Co. provides a free chocolate milk iPhone app (4,000,000 so far). When launched, a bottle of Hershey’s chocolate syrup is displayed. An add milk button pours white milk from above. An add syrup button pours chocolate syrup when the iPhone is tilted or squirts when the button is touched. With syrup added, a spoon appears and shaking the iPhone stirs the milk ( with tinkling sounds) to make chocolate milk. Hershey’s red and white straw materializes so the milk can be emptied (with sucking sound) by touching the straw. If the iPhone is tilted so the straw is out of the milk, a louder gurgling sound our mothers told us never to make plays. Blowing into the microphone, produces bubbles in the milk. Once the milk is gone, you are asked if you like more.
Hottrix believes Hershey’s app infringes its iMilk copyright and demanded that Hershey cease and desist from infringing. In June, 2010 Hershey filed a lawsuit asking a judge to declare that its app did not infringe any protectable claim of Hottrix’s. Hershey argued that its app was not substantially similar to Hottrix’s, although both incorporate the idea of using an iPhone to create virtual milk. Hershey noted numerous differences in the actual “expression” of the idea: 1) the initial image of Hershey’s chocolate syrup bottle; 2) filling the phone from the top; 3) syrup pouring into the phone; 4) stirring with a spoon; 5) using Hershey’s red and white straw to drink the milk; 6) the slurping sound as the milk is consumed; 7) creation of bubbles by blowing into the microphone; and 8) the closing image of the Hershey’s syrup bottle. Hershey notes that none of those “expressive” elements exist in the Hottrix app.
Hottrix countersued this week arguing that Hershey’s app was substantially similar, and that Hershey had made a copy and derivative work having the same “look and feel” of pouring and drinking virtual milk. Hottrix sales of its app have decreased, and it alleges that it has lost 12 million dollars. Hottrix claims that Hershey’s app has diluted the market, destroyed the distinctiveness of Hottrix’s app, and destroyed the public’s identification with iMilk as a Hottrix product. Hottrix’s product line includes iSoda and iBeer apps and it claims protectable trade dress in the non-functional designs and aesthetic features that identify them as Hottrix apps.
Look at the apps and decide for yourself how similar they are or are not. You are the consuming public. This is the fun part of IP law! I wonder if the jurors will be given real chocolate milk during their breaks?
— Laurence Weinberger, Esq.