According to a Forbes Blog report, The Hershey Co. has filed a complaint in the U.S. District Court for the Middle District of Pennsylvania against Hotrix LLC, creators of the iPhone application iMilk, seeking a declaratory judgment that its own Hershey’s Chocolate Milk iPhone application does not infringe upon Hotrix’s copyright on iMilk. According to the suit filed by Hershey, Hotrix sent a notice of infringement to Hershey in December 2009, claiming that Hershey had stolen the iMilk code and modified it for its own product. In the notice, Hotrix also demanded that Hershey cease marketing its Chocolate Milk app, and threatened to sue if the Chocolate Milk application was not removed.
Both applications allow users to virtually drink a glass of milk on the iPhone and iPod touch. Hershey’s complaint argues that Hotrix LLC cannot claim to own “the unprotectable idea of a virtual glass of milk.” According to the complaint, Hershey created the application independently and notes that the two products are not substantially similar. “Although both reflect the idea of using an iPhone to create a virtual milk drink,” the complaint says, “the actual execution of Hershey’s Chocolate Milk iPhone application is very different than that of the Hottrix application, with numerous substantial differences in the actual expression of each application.” Hershey’s Chocolate Milk application includes a number of features not found in iMilk, including a virtual Hershey’s Syrup bottle, a spoon for stirring, and the iconic red and white straw from Hershey’s product labels.