Drink Up: Power Hour Trademark Bully Loses; Musician Plans Victory Tour
from the and-drink-again dept
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...