NEW YORK The outcome of a lawsuit that accuses Molson Coors Brewing Co. and London agency Beattie McGuinness Bungay of infringing upon the copyright of a software application that enables users to simulate drinking a beer on an iPhone hinges on whether the plaintiff can prove that the defendants had access to the original application, two intellectual property lawyers said Friday.
"You have to have copying. The mere semblance of similarity is not enough," said Ethan Horwitz, a partner at King & Spalding in New York. Tracy-Gene Durkin of Sterne Kessler Goldstein Fox in Washington, D.C., added, "If you can't show actual copying," then you must prove that the defendants had access to the original application and there is "substantial similarity" between the rival applications.
Hottrix, a Las Vegas-based application developer with the rights to iBeer, alleges in the suit that BMB contacted application creator Steve Sheraton about licensing iBeer for Molson Coors' Carling brand before developing iPint, which also simulates beer drinking. And, even before that, Sheraton had posted a video demo of his app online, the suit said.
IPint became available for free via Apple's App Store in July and has been downloaded more than 6 million times worldwide, per the suit. IBeer, in contrast, sells for $2.99 and has been less popular. The suit, filed Oct. 10 in U.S. District Court in Los Angeles, seeks $12.5 million in damages.
Hottrix also accuses the defendants of creating a false sense that the applications were related, as if iPint was the basic, free version of iBeer.
A Molson Coors representative said the company is "confident that we'vehandled this matter apppropriately and will vigorously defend the action."
BMB did not return messages.