Bogus Beer Battle Brewing
by Eric March on October 20, 2008 at 6:25 pm
It’s a serious case of potential infringement of intellectual property, and yet it almost couldn’t be more absurd.
In this corner, you have Steve Sheraton and Hottrix — you may not be intimately familiar with the names, but I’m certain everyone has heard of their flagship creation: iBeer. Peddled as a “magic” trick in the jailbreak era prior to the introduction of the App Store, it made the rounds for its novel use of the iPhone’s accelerometer and some moderately clever animation to allow the user to simulate the drinking of a virtual beer by tipping your iPhone or iPod Touch to your lips. It was cute and novel — hardly “magical” if you knew how it worked, which any idiot could figure out, let’s be honest — and it wasn’t free, a move considered controversial at the time by those without a grasp of basic market forces or capitalism in general.
In the other corner you’ve got real the brewers, Ontario’s Molson Coors Brewing Co. and the London-based Beattie McGuinness Bungay. These guys make real beer — and I myself have enjoyed plenty of Molson products in my day. (We will not speak of Coors. Ever.) For entirely different reasons, they wanted to hop on the iPhone bandwagon to make a sponsored app — a mini-game, with the bonus of an iBeer-like virtual beer drinking section. They called it iPint, and it pimped the Carling brand. If you ask me, iBeer’s looked a little more realistic (in screenshots, anyway), but iPint behaved more realistically. But that’s not what this is about.
What this is about is Hottrix filing suit against Molson and BMB, alleging that they copied the iBeer concept wholesale and just made it look and behave a little differently. Hottrix is seeking $12.5m in damages, claiming that iPint is free and has been downloaded over 6 million times, while the $2.99 iBeer has been significantly less popular, a fate that they presume would not have existed if Molson and BMB hadn’t supposedly ripped them off.
Yes, indeed, it is the Battle of the Bogus Brews.
But although iBeer predates iPint, the case is not quite so cut and dried as all that. King & Spalding partner Ethan Horwitz says, “You have to have copying. The mere semblance of similarity isn’t enough.” Tracy-Gene Durking of Sterne Kessler Golstein Fox concurs, stating that Hottrix need to show that Molson and BMB had access to the orignal app, and that there must be “substantial similarity” in order for their case to hold any water. Or beer, in this instance.
In other words, simply being first isn’t enough to prove their case. They have to prove Molson and BMB knew about it, had access to it, and made a similar app based on it that is very similar. Now, I don’t know where the line is drawn on similarity, but although iPint’s virtual beer portion is extremely similar in intent, it is fairly dissimilar in design in that it uses two-dimensional filled vectors to draw the beer and foam, while iBeer is just a series of animated photographic images triggered and sequenced appropriate to the action being take by the user.
In its own way, it sounds like shades of Apple’s “look and feel” suit against Microsoft (see: Apple Computer Inc. v. Microsoft Corporation, 1988) — which some of you may recall Apple lost. One might say that Hottrix is in the same position as Apple was, and unless they can prove direct infringement through copying, they too will lose. But Hottrix aren’t giving up that easily.
Hottrix allege that BMB contacted Steve Sheraton about licensing iBeer for Molson’s Carling brand — though it is not explained why Hottrix turned down such a potentially lucrative offer. Furthermore, Hottrix state, they had a video of iBeer posted even prior to that.
Who knows where this suit will end up? And anyway, once again, despite this being an issue of IP infringement, I can’t seem to get away from the fact that it’s over virtual beer apps. Legally it’s a valid case. Take a few steps back though and I just can’t help laugh at what looks like, from a distance, a frothy mug of carbonated absurdity.
(via AdWeek)
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