Drink Up: Power Hour Trademark Bully Loses; Musician Plans Victory Tour

from the and-drink-again dept

Mon, Jan 28th 2013 11:47am — Mike Masnick

Nearly three years ago, we had a short post about yet another trademark bullying dispute, this time over the term "power hour" as used to refer to the old college drinking game of taking a shot of beer every minute for an hour. A guy named Steve Roose somehow (via a USPTO screwup, basically) received a trademark on the phrase, which he was using to market some DVDs. He had gone on a rampage threatening and/or getting takedowns on lots of other sites that used the term "power hour," including against musician Ali Spagnola, who had an album / concept project called "Power Hour" consisting of 60 one minute songs. The idea, of course, was that each time the music changed (either live or while listening on your own), you take a drink. She even went the full CwF + RtB route with the thing, offering the album as its own shot glass with a USB key embedded in the bottom (though, annoyingly, she patented this little doohickey).

It turns out that there were a lot of twists and turns both before and after that post -- and you can (and should!) read the full crazy story, as explained (quite amusingly) by Ali herself. Or, if you want to take the shortcut, you can just watch this amusing video of Ali explaining part of it. My shortish version: Years earlier, Steve had enthusiastically approached Ali -- telling her he thought the music and concept were great -- and offering to help promote and sell her product. They actually signed an agreement, though he never actually sent her any money for any product sold. Then, a week after a normal friendly email exchange, Steve apparently discovered a bastardized version of trademark law, which unfortunately made him think that a requirement for holding a trademark is to be a complete jerk to anyone else who used the term. He sent Ali a legal(ish) nastygram ordering her to "seize" from continuing (I think he meant "cease") and was able to get her album taken down off of Amazon. After some emails back and forth, Ali took matters into her own hands (and wallet) and eventually coughed up about $30,000 to do a full opposition to the trademark. Crazy, I know. Steve defended his trademark by himself, and apparently did a piss poor job of it, even contradicting himself on some key points (both claiming that the trademark was totally original and his idea and explaining how "power hour" has been around for ages).

In the end, after all of this, Ali did win. You can check out the dry legal version from the Trademark Trial and Appeal Board (also embedded below) which is not nearly as entertaining as either Ali's video or her writeup. But, it's got some more details as well. Anyway, the key part:

Ultimately, the evidence of record points unmistakably to the conclusion that the proposed mark is highly descriptive. The third-party use of the term in conjunction with a drinking game is widespread and voluminous. Well before applicant’s claimed first use date, the term appears to have been established as the name of a drinking game. Because POWER HOUR refers to the game that applicant’s goods are designed to facilitate or accompany, we conclude that the proposed mark is merely descriptive of a significant feature or function of applicant's goods.

Translation? Drink up! And that's exactly what Ali, and her company "Binge Responsibly LLC" are intending to do. She's set up a Power Hour Freedom Victory Tour crowdfunding effort on IndieGoGo, to try to turn trademark bully lemons into crowdfunded touring lemonade. There are some cool offers as part of the crowdfunding campaign, so go check it out if you'd like to raise a shot glass full of beer to trademark bullies (finally) losing.

Oh, and be sure to get all the way to the amusing post script to the whole story, concerning the email that Ali received from "Steve Roose" after she won... in which someone who appears to be the same Steve Roose claims to be a different Steve Roose. Perhaps he's done one too many power hours...

TTAB Power Hour Decision (PDF)TTAB Power Hour Decision (Text)

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Filed Under: ali spagnola, power hour, steve roose, trademark bully

22 Comments

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Jeff (profile), 28 Jan 2013 @ 11:28am

Power Hour...
We need a few of those around here... :-)
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Jay (profile), 28 Jan 2013 @ 11:57am

Still not quite as crazy as the Prenda Law debacle. But amusing.
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Suzanne Lainson (profile), 28 Jan 2013 @ 12:11pm

This site is interesting
This site maintains a list of the biggest trademark bullies. It uses opposition filings as its criteria for generating its rankings.

Trademarkia

There are some familiar tech names. Facebook is on the list of the top bullies in all categories.

Google and Apple are on the list in Advertising, Business, and Retail Services.

I haven't gone through everything, but if one wants to explore trademark bullying, this might be a good resource.
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weneedhelp (profile), 28 Jan 2013 @ 12:25pm

Just curious
If TD sold a shot glass with a USB key in it how long until she sued.

Because, ya know, no one ever thought of putting a USB key in things.
http://pinterest.com/puckanne/funny-usb-sticks/

I bet she has no clue how hypocritical she looks.

BTW... I had that idea a long time ago. The key would have had a bunch of drinking games & games that go along with drinking on it.

Oh well, guess I should have gotten to the patent office first.
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jupiterkansas (profile), 28 Jan 2013 @ 12:39pm

Re: Just curious
I seriously doubt she'd care unless the USB key had her music on it.
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crade (profile), 28 Jan 2013 @ 12:40pm

Re: Just curious
I can't believe the things that people are allowed to patent.. Doesn't anyone look at these things? Taping or otherwise attaching a USB key to the bottom of a shot glass is not an invention, and anyone who thinks it is is lying.
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crade (profile), 28 Jan 2013 @ 12:47pm

Re: Re: Just curious
Oh, well thats different then.. Completely absolves her of being a complete hypocrite.. ("lolz")
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crade (profile), 28 Jan 2013 @ 12:54pm

What I'd like to know is how come she looks pretty cute in her video when she's being normal, but when tryings to be all sexy for her album cover she end up reminding me of the mom from "that 70s show"?
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Anonymous Coward, 28 Jan 2013 @ 1:03pm

great that she won however not sure about the promotion of getting drunk.

hmm

so many feels.
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weneedhelp (profile), 28 Jan 2013 @ 1:19pm

Re:
She is not comfortable like that in front of a camera.
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Trails (profile), 28 Jan 2013 @ 2:23pm

This chick
She needs to make a baby with Slurms McKenzie.
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Spaceman Spiff, 28 Jan 2013 @ 3:05pm

Arrrgh!
That she had to take this to court in the first place was ridiculous! I hope Roose had to pay her court costs, and will be denied entrance to ANY Power Hour parties in the future... All that said, I really liked her video! She definitely kicks A55!
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Unanimous Cow Herd (profile), 28 Jan 2013 @ 3:20pm

A New Variant.
We can call it Prenda Hour.
You can only play it when Prenda is in court and you must take a shot every time they do or say something stupid or shady.
Anyone up for that kind of challenge?
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Anonymous Coward, 28 Jan 2013 @ 3:29pm

"... or while listening on your own"

...and by implication that means people are doing a power hour of drinking on their own??
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Zos (profile), 28 Jan 2013 @ 3:54pm

wait, the usb containing the music was in the bottom of the shot glass? how do you take a shot without killing the music?
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Mike Masnick (profile), 28 Jan 2013 @ 4:29pm

Re: This site is interesting
This site maintains a list of the biggest trademark bullies. It uses opposition filings as its criteria for generating its rankings.

Opposition filings are hardly a good indication of trademark bullying. Quite the opposite. Opposition filings often prevent bad trademarks from being issued.

That said, I agree that big tech companies can be pretty bad about their bullying, and we've written stories about all three companies you named and their overreach on trademarks.

That said, it's completely off-topic. So why even bring it up?
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Suzanne Lainson (profile), 28 Jan 2013 @ 4:42pm

Re: Re: This site is interesting
That said, I agree that big tech companies can be pretty bad about their bullying, and we've written stories about all three companies you named and their overreach on trademarks.

Could you point me to them? I did a search of Techdirt and only found one entry on Apple and trademarks. Nothing about either Google or Facebook, but maybe I didn't search correctly.
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Suzanne Lainson (profile), 28 Jan 2013 @ 5:03pm

Re: Re: Re: This site is interesting
I just found this one.

Google Sending Cease And Desist Letters Just For Using Google Logo | Techdirt
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Suzanne Lainson (profile), 28 Jan 2013 @ 6:11pm

Re: This site is interesting
Here's a bit more about the site. I didn't know about it until today. I was doing some research on trademark bullying and saw the articles about it.

New Trademarkia Feature Exposes Biggest Trademark Bullies; Apple, Zynga Among Top Five | TechCrunch: "... it�s been difficult to find out which companies are just standing up for their rights and which companies are actively bullying. Trademarkia�s searchable database goes some of the way towards improving this, letting users view plaintiffs and defendants within each category, and to quickly browse prosecution history and trademark details.

"This allows users to get a better sense of the bullies vs fair opposition problem, and more easily make ourselves aware of when Facebook sues a company because they have 'book' in their name or 'face' � or Apple claims it owns 'Pad' or bullying users of 'app' and 'pod' � for example. (And, in its defense, Facebook has often found itself on the victim�s end as well.)"
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Anonymous Coward, 28 Jan 2013 @ 8:05pm

Musician Plans Victory Tour...
...and gets sued by The Jacksons.
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Clearly Pellucid, 29 Jan 2013 @ 10:19am

Inspiration
She didn�t get into this dispute because of a desire to reform the Trademark process. She was dragged into a fight because someone was abusing the system and she had to stand up for her rights. The processes weren�t designed for the abuse of intellectual property. They were designed to protect us all but just like any process there will always be people that try to get around and abuse it. She is not a hypocrite. She actually used the Trademark system to protect yourself. Even if it took work and $, in the end she got a just verdict and everyone can now feel free to use the term Power Hour. If she should ever encounter another abuser (be it patent or trademark) I would hope that she would similarly stand up for her rights. I'm happy that the system worked and trust that it will in the future. She was not the abuser. She was the victim but refused to stay victimized. That is just one reason I am so inspired by her!!!
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weneedhelp (profile), 1 Feb 2013 @ 12:39pm

What is the patent number?
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