A Trademark Lawsuit that Could Drive You to Drink

Submitted by patentadmin on Mon, 03/18/2013 - 13:16

Most of us who survived college with our dignity intact are pretty content to put it behind us. But if you're not already happy to have joined the ranks of the grown-ups, this story of an alcohol-fueled trademark dispute might do the trick:

"Power hour" is a drinking game in which participants take a swig of beer every minute for an hour. Apparently the game is so popular that it inspired a singer-songwriter named Ali Spagnola to record "The Power Hour Album," which contains songs that we assume encourage the chug-a-luggery of cheap beer.

Unfortunately for Spagnola, someone else had trademarked "Power Hour" first - and sent her a cease-and-desist letter (but only after trying to make money off her DVDs).

Starting around 2000, Steve Roose began creating a Power Hour empire of videos and websites dedicated to the drinking game. And he applied for (and received) a trademark on the term "Power Hour." As Spagnola tells the story on her blog, Roose first offered to produce and sell Spagnola's DVDs, and even get them into the prestigious (we're joking) Spencer's Gifts line of retail locations. But the partnership suddenly ended when Spagnola contacted Roose to find out why she hadn't received any money, and received a cease-and-desist email in return.

For a number of reasons, Spagnola prevailed in her opposition to Roose's trademark. To wit:

  • Spagnola alleged that "'power hour' refers to a drinking game in which 'players consume one shot of beer each minute, for a period of one hour,'" and that “the game predates Applicant’s software, and does not require Applicant’s software.'"
  • Roose himself referred to Power Hour as an "age old drinking game" on his website, which was only "spiced up" with the addition of his interactive content.
  • Roose had contacted Spagnola via email with offers to work with her without asserting exclusive rights over the term "Power Hour" or objecting to Spagnola's use of the term. In those early emails, Roose even referred to Spagnola's products as “power hour mixes of music” (before he decided to send her a cease and desist email).

The final decision in the case, issued by the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board: "The opposition to the registration of POWER HOUR is hereby sustained under Section 2(e)(1) of the Trademark Act because the mark is descriptive and lacks acquired distinctiveness under Section 2(f), but dismissed on the ground of genericness."

So Spagnola prevailed, but the experience cost her around $30,000 in legal fees. But upon winning the case, she was "so excited I did like 7 power hours that night. In under 45 minutes!"

If you're still reading this and haven't been playing "Power Hour: The Home Game," you might be interested to know that Roose took down his "Power Hour" websites and is now (according to Spagnola's website) a realtor. And so ends the strange story of Binge Responsibly, LLC vs. Power Hour, LLC. Cheers!

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