Cheers to Ali Spagnola, who spent three years and $30,000 to invalidate a bogus trademark awarded on a popular—and decades-old—drinking game.
American intellectual property law is enough to drive one to drink.
Just ask Pittsburgh musician and artist Ali Spagnola, who emerged victorious earlier this year after what has to be one of the weirdest trademark battles in recent history. Spagnola spent three years and $30,000 of her own money to correct an error by the US Patent and Trademark Office (USPTO). It’s an example of a larger problem, where people who create and curate for kicks run afoul of those willing to abuse the trademark system to shut down our fun.
The dispute centered around Power Hour, a boozy 60-minute drinking game in which participants throw back a specified number of alcoholic beverages—usually 60 small shots of beer—at one-minute intervals. Setting aside the wisdom of this activity, Power Hour is a time-honored tradition in certain circles, often connected to 21st birthdays, beer pong fatigue, or Edward Fortyhands ennui. The name and concept of Power Hour was already around in the late 20th century, when I may or may not have played.
Since those beer-soaked days of yesteryear, a generation of entrepreneurs has ushered the game into the digital age, creating a dizzying array of websites with domain names like PowerHourZone, PowerHourHQ, iPowerHour, even sound-alikes like PowerHower. Many of the sites have created or curated Power Hour mixes to play during the game, often user-submitted. The sites’ creators generally started them for fun, with little thought toward "monetization."
“[My site] combines three of my favorite things: web development, music, and alcohol,” Ryan Hogue at PowerHourZone told me. Most of the sites offered a substantial portion of the content at no cost, supported by ads or merchandise alone. They often link to each other, and were in contact before the drama started.
Ali Spagnola’s contribution to this mix is PowerHourAlbum. Spagnola started performing a live concert of the game at bars and events in her senior year in college. She later recorded a catchy little album of 60 different original one-minute songs, and listeners are invited to imbibe between each track. She even has a USB shotglass on a lanyard, which is probably helpful for some participants in the waning minutes of the game.
When she’s not onstage doing her high-energy show, Spagnola is self-deprecating, laid back, and artsy. She jokes she’s a “drinking composer with a music problem.” She's produced commercial art to pay the bills, but much of her creative output is simply for the love of it. In addition to PowerHourAlbum, she’s created a number of other whimsical projects over the years, including giving away a free commissioned painting every day. The wait list on that project is now backlogged for years.
Her chilled-out demeanor becomes energetic, however, when we move from chatting about drinking games and giving away free art to discussing the lawsuit.
She says everything was cool in the Power Hour creative community until Steve Roose, who founded the PowerHourGame website in 2007, became drunk with power. Roose and Spagnola's correspondence was friendly at first; he offered to produce and sell her album on his site. In 2009, though, Roose applied for a trademark for the term “Power Hour” in all digital media: CDs, DVDs, and software “featuring a timed drinking game where players take a shot of beer every minute for an hour.”
Pete Berg of PowerHourHQ says there were several key problems with the filing. First, the Power Hour trademark should never have been issued because the term was in use long before 2000, when Steve claimed in his application that he began using it in commerce.
“If [the USPTO] had done a single Google search for ‘power hour’ in 2009 when Roose filed the trademark application, they would have found thousands of references to the drinking game," Berg said. "We're talking 15 minutes of research––it's not hard to find references to 'power hour' dating back to the '90s.”
Second, Berg said, regular people aren’t cutting into their drinking time to check the USPTO site for recent trademark applications: “There is a period of time where anyone can contest a trademark application, but you have to be watching like a hawk to even know that anyone has applied for your mark."
"This information gets posted on an obscure corner of the USPTO's confusing website. They also don't make any effort to contact anyone who might also have an interest in the trademark. It's way too easy to sneak a trademark through.”
These two problems started a Kafka-esque cascade of legal wrangling that Spagnola had to deal with on her own dime, and on her own time. Once the USPTO granted the trademark to Roose, they reported that to rescind it would require Ali to secure an order from the Trademark Trial and Appeal Board (TTAB).
The worst part? Spagnola learned of the trademark filing early enough to file an opposition prior to its registration, “but there was some sort of clerical error, so he was given the trademark anyway, even though my documents were submitted in time and they even acknowledged that they got them."
"After he was issued that trademark, you’d think it would be simple to take it back because it was an accident," Spagnola said. "They said they had made this error, but there nothing they could do about it. So now I had to go though lots more dollars and lots more time.”
Once the trademark was granted in 2010, Roose became enforcement actions: out went nastygrams to other Power Hour site owners, informing them of his trademark registration and ordering them to cease and desist.
However, Berg says, Roose didn’t Know When to Say When, to quote the long-running Budweiser ad campaign. He went beyond standard trademark enforcement to acting like “a total asshat.”
Moreover, Berg claims, Roose took content from his site after he ignored his letter: user contributions hosted on PowerHourHQ ended up behind a paywall on Roose's homepage.
“Steve was using an oversight by the trademark office to not only try to line his pockets, but also to ruin the Power Hour party for everyone else," Berg said. " ... We were just doing this for fun, and Steve tried to ruin it.”
iPowerHour was so rattled by the behavior they changed their domain to the ultra-generic iDrinkingGame just to avoid legal hassle. Spagnola’s music was taken down from Amazon and Rhapsody, and Roose threatened to get it removed from iTunes and other platforms.
After talking to a lawyer, who warned of the high costs of fighting a successful trademark registration, Spagnola was ready to walk away. But Berg decided to do something unusual: ask the vast and sprawling Reddit community for help.
His post on the link-sharing site was meant to “unleash the internet hate machine,” and it worked.
“It motivated Spagnola to really fight this case. It helped her raise some money for legal fees, enough to make a small dent in the bill. It also convinced her that there are enough people out there interested in her story and her Power Hour album that it was worth pursuing,” Berg said.
Adds Spagnola: “I tried to keep it light-hearted because the internet doesn’t like people complaining, but the whole time it was really quite frustrating. The hardest part was when Steve kept prolonging things. He had the power to keep draining my money.”
Roose would not respond to her legal papers, Spagnola said, forcing her to spend more money and time to compel him to respond. She decided that since she was putting so much time and energy into saving Power Hour, she should try to recoup her investment by doing a professionally produced album and be ready to rock when the decision came down.
After three years and thirty grand out of pocket, Ali finally got a welcome call from her lawyer on New Year’s Eve, 2012. In trademark law, marks fall along a continuum from “distinctive"–and thus enforceable–to “generic"–uneforceable. The TTAB found that Power Hour fell in the middle, but closer to generic than distinctive. Based on the mountain of evidence Ali supplied, the TTAB determined that Steve’s Power Hour mark “is descriptive and lacks acquired distinctiveness.”
In other words, Spagnola won big.
Roose took down his site right after the ruling, but he still hoped to make one last buck, according to Berg: “Steve sent an anonymous email to Ali and myself a few days after losing the trademark, trying to sell his company and domain name.” The PowerHourGame site’s current design looks like one of those domain name reseller templates on a parked domain. It links to an eBay auction ending on February 25. Bids as of the last day of bidding? Zero.
Roose did not respond to a request for an interview.
Meanwhile, Spagnola and Berg are back to creating. I caught up with Berg during filming on a show in rural Michigan; he said that he and Spagnola became friends during their experiences. As for Spagnola? She’s got an IndieGoGo campaign going to support Ali’s Power Hour Freedom Victory Tour, where fans and drinkers can register their support for Spagnola before it closes at the end of February.
When informed about this story, Spagnola created the delightful song and video “ With a Beer in Your Hand,” in collaboration with filmmakers John and Elaine Wooliscroft and production designer Ben Saks.
Let’s raise a glass to Ali, to the creative spirit, and to her victory.
Illustration: Rob Beschizza. Photo: Shutterstock
Published 3:00 pm Mon, Feb 25, 2013
drinking games, patent trolls, trademarks