updated 9/13/2010 6:51:29 PM ET 2010-09-13T22:51:29

Hershey wants a judge to let it keep on making virtual chocolate milk.

How now?

The Pennsylvania chocolate maker filed a complaint earlier this summer asking a federal judge to decide whether an application it created for the iPhone and similar devices violates a copyright held by Las Vegas-based software developer Hottrix LLC.

The two companies are battling over respective iPhone apps that both involve making virtual chocolate milk.

Hottrix filed a counterclaim Monday saying Hershey had improperly used its intellectual property, costing it more than $12 million in lost profits and damage to its brand. It said the Hershey app "dilutes the market and serves to destroy the distinctiveness of Hottrix' copyrighted works."

Company lawyer Jason H. Fisher said Hottrix's $3 iMilk app came first and includes plain milk and strawberry milk. Hottrix's court filing said Hershey's free app has been downloaded more than 4 million times.

Fisher said Hottrix previously settled a similar dispute with Coors over a beer-related app on confidential terms.

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Hershey's legal filing says the app it launched in October is much different, including its use of a red and white straw to "drain" milk from the phone screen.

"Unlike the Hottrix application, the Hershey's Chocolate Milk iPhone application 'milk' cannot be 'drunk' from the iPhone by tipping the phone (which is the only mechanism for drinking the milk in the Hottrix application), but can only be 'drunk' by use of the virtual straw," according to the lawsuit, filed June 2 in U.S. Middle District Court in Harrisburg.

Hershey spokesman Kirk D. Saville declined comment.

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