A few years back, we wrote about how indie iPhone app developer Hottrix had sued beer giant Coors
for making a competing beer app. Hottrix, of course, makes various gimmicky apps that make your iPhone look like it is full of some sort of liquid that "drains out" as you tilt the device to make it look like you're "drinking" from the phone. They're pretty silly, but some people have liked them and were actually willing to give Hottrix money for them. One of Hottrix's apps was iBeer. Coors created their own beer drinking app, called iPint, and offered it for free. That's when Hottrix sued. I can't find any information on what happened to that lawsuit. After it was filed nothing much seems to have happened
. Perhaps it was settled out of court?
Either way, Hottrix seems to have learned a simple lesson: if some big company makes any sort of "drinking app," be sure to sue. The latest target is chocolate giant Hershey, which made a chocolate milk drinking app which wasn't even a "clone" of Hottrix's app. After Hottrix threatened to sue, Hershey sued first for declaratory judgment
and Hottrix counter-sued. Hershey reasonably asked the court to dump Hottrix's lawsuit, but the court has refused. I'm having trouble understanding why. It is true that Hershey had first reached out to Hottrix about having it make a similar app for Hershey, but even after Hershey went to another developer instead, it's hard to see what is "protectable" under copyright that Hershey copied here. As has been pointed out over and over again, copyright doesn't protect the idea, just the expression, and this appears to be an entirely different expression, even if it is based on the same idea.
The case might still turn out in Hershey's favor, but the judge is claiming that a full trial is necessary, as Hottrix has sufficiently pled its case, though I'm still trying to figure out how that's possible. As you read the details of the case, you realize that Hershey's app is actually quite different than Hottrix's. Yes, both involve the basic idea of drinking, but Hershey's app has different features. You don't "drink" out of the corner of the app, but out of a "straw" that you add to the app. The Hershey's app includes (not surprisingly) the ability to add chocolate syrup to the milk -- which Hottrix's app does not have. The court argues that because Hershey had obviously seen the original app, and that its own app is similar enough that this issue needs to go to trial. However, given the fact that it's difficult to see what's protectable, this seems like a huge waste of court resources. Hopefully the court realizes this eventually, but it seems like a waste of time to have to go through a full trial to make the obvious point that Hottrix doesn't deserve a total monopoly on "drinking" apps.