/ Andrea James / 3 pm Mon, Feb 25 2013
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  • Loaded terms: How a Pittsburgh artist beat the most bogus trademark in drinking game history

    Loaded terms: How a Pittsburgh artist beat the most bogus trademark in drinking game history

    Ali Spagnola spent three years and $30,000 of her own money to void a ridiculous trademark awarded by the US Patent and Trademark Office. She won, but the larger problem remains, with the odds stacked against independent artists who lack the financial and legal wherewithal to monitor the office for abusive filings or oppose them successfully.

    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.

    "It's way too easy to sneak a trademark through."

    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.

    “We were just doing this for fun, and Steve tried to ruin it.”

    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

    / / COMMENTS

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    1. We played it in college during the late 80’s, but it was called “Century Club”. One hundred one-ounce shots of beer in one hundred minutes. Running to the bathroom to take a leak in the middle of it and being back before the second hand got around was a challenge.

      1.  Me and my friends did a hundred shots in 100 minutes in 1987, and the real challenge was to finish without puking. None of us did, but I believe the last hold out lasted until around 90. For the record, it’s a beer every 12 minutes for an hour and a half (plus 10min). You start to dread the approach of the next minute.

        1. I never threw up during the game, but it did become a hell of its own! My experience was one of time being quite elastic. At first it moved along at a very leisurely pace, but by the end the clock moved so fast you barely had time to pour your next shot before it was time to drink. BTW, we used very light (and cheap) beer for this. Piss early, piss often.

    2. It seems like this “Steve Roose” guy got off scot free after making life hell for this young woman.

      There must be some way he can be tagged for the rest of his earthly existence with a big “asshat” label so anyone who ever thinks of doing business with this guy knows what kind of person he is.

      I only think it’s fair.  Some sort of digital Scarlet Letter that can brand him until he does so many good deeds that he deserves the opportunity to live a normal life. 

      I’m not saying his progeny should be cursed for seven generations or anything, but he shouldn’t be able to just go right on to the next deplorable act without pause. 

      1. Some sort of digital Scarlet Letter that can brand him until he does so many good deeds that he deserves the opportunity to live a normal life.

        This idea may be emotionally appealing, but it seems like a strange suggestion after a story illustrating the problems with bureaucracy. It’s probably better if we try to look for positive solutions to these problems at this point.

        For example, there was an uncorrectable clerical error in the chain of events described above. How about changing the system at the USTPO so that clerical errors of that sort can be followed up without a private citizen having to spend $30,000 out of their own pocket on legal fees?

        1. How about instituting some sort of system at the USTPO where people can upload and track generic terms as they come into existence, so that people can’t try to trademark them as they go mainstream?

          1.  Now THAT we are told there is. It’s not like they don’t order replacement computers from this century (and an occasional minor supercomputing and LOC compliance entry that gets its own name and a blessing from national labs.) Which I just now suck at finding…with sequestration, they might need some help hauling 50′ wind masts out of the file room for use to keep tablets humming; so, the ‘bad’ news is the Federal Transparency we want is gonna be on Craigslist. (n.b. that’s a Fancy-Based statement.)

            Though PatentlyO.com seems to be a nice place for velvet typography if you wanted to glance at those bits. Or, for just domains e.g. http://www.thedomains.com/2012/10/23/udrp-filed-against-generic-domain-name-interiordesign-com/
            UDRP would be universal domain request for patent.

          2. Generic, in trademark law, is a legal term and whether something is generic or not is fiercely contested.  It could be used to flag things, but the problem is in the way trademark registration works.  Unlike patents, there is very little review before a trademark is issued.  All they do is check that it doesn’t fall into one of the prohibited areas (see http://www.bitlaw.com/source/15usc/1052.html  Technically they are supposed to check for similar names already in use, but usually this only means searching the trademark databases (because it is so easy to register a mark, it is presumed anyone who has an interest in it would have registered). If there is no registered mark that it conflicts with, they’ll publish it and see if anyone objects.  If no one objects, it is presumed valid until it is contested.

      2.  It seems she’s hellproof, yet could stand to be gifted 30k plus interest and tax ($30k in prepaid legal gift cards as cheesy lagniappe) and some hard liquor to age and sample later in thanks from a hopefully wiser Steve. Roose. Is this article a more ephemeral tag than I think? Perhaps there is a more appropriate tracker of deplorable compliance that would be a sort of ‘pet sematery’ sign (Scarlet Letters being canny (or feminist canon, or Demi Moore teaching late 18th century literature) for almost nobody at all.)

    3. Kudos to the writer here not just for the excellent story, but also for being one of the rare journalists to correctly discuss trademark law.

      1. Almost correctly. The spectrum runs from “arbitrary and fanciful” down to “generic,” with “descriptive” as the edge case–a descriptive mark with acquired distinctiveness stands, but a descriptive mark without, such as “Power Hour,” dies.

        “Distinctive” isn’t actually a term on the spectrum, specifically because of its role deciding the edge cases.

    4. This Power Hour, sounds like a poor man’s Centurion or Decimation depending on your preference for name. 100 shots of beer, over 100 minutes, and every 10th shot is a spirit of some kind. At the end of the game, people surviving are given a crown and hailed as Centurions for the rest of the night.

    5. God I hate beer, and a game like that with liquor I think would be classed as a suicide. More, uh, power to her though! I hope she has more than recovered the 30k.

    6. This is a perfect example for why patent trolls should be able to be held liable for the costs of fighting them. Roose should be forced to repay the costs for fighting his bogus trademark, especially since he damn well knew there was prior art.

      1. This isn’t an example of patent trolling though. I mean, the guy’s a complete jackass, but he filed for a trademark, was awarded it, and defended it more or less according to trademark law.

        Imagine if a big company like Microsoft or Apple could go after some guy with a trademark, and if they won, he had to pay their legal expenses. As an small business, they bankrupt you.Aside from the guy being a jackass, the real problem is USPTO — they made an obvious mistake that they even acknowledged, and yet they still forced her to go through all that expensive additional work. They should be the ones picking up the tab.

        1. I meant the trademark equivalent of a patent troll; this guy took an already-in-use generic term and trademarked it in order to force all competition from the market. If a small business slides a trademark for “web browser” past the USPTO, and MS/Apple/Mozilla/whoever bankrupt them, then good – they deserve it for trying to use the TM system for extortion. That is exactly what happened here, and being forced to pay for the legal fees to defend against his bogus, malicious, extortionist, fraudulently-registered trademark is the least of what he deserves.

          1. If you can show bad faith in obtaining or enforcing a patent or trademark,  both patent trolls and trademark trolls can be held liable for the costs of fighting them (attorney’s fees).  This doesn’t solve the problem, because you still have to front the money to fight it (or find a lawyer willing to take it on pro bono or on contingency,) and you still have to collect it once it has been awarded.  You can also get awards/sanctions for dilatory and bad faith legal tactics.  Ali may be awarded $30k in attorney’s fees, but she has to collect it, which will be another legal battle.  And if the troll files for bankruptcy, this is an unsecured claim so she would likely only get pennies on the dollar because she has to wait in line behind any secured creditors.

            The system still has a lot of problems, but all of the comments saying “it should be like this” are generally describing the way things already are. 

    7. Somewhere there’s a Schumpeterian angle; here this normal-lookin’ twentysomething can pound 100oz. of fine Belgian or Non-Belgian beer or ale in a hour, and sing to all these people who can also (try to) throw that long tail down. Maybe they’re all 7’9″ or do MoCap for League Of Legends to burn it off; maybe she grows extra livers.

    8. I thought that if a case like this was unsuccessful, the plaintiff, (Mr. Asshat) would have to pay the defendant’s court & lawyer fees. No? Wouldn’t that prevent a lot of these frivolous lawsuits?

      What about the USPTO who’s cock-up allowed all this to happen, would she now be free to go after them for her expenses?

      1.  You are correct, but only if she proved he was acting in bad faith. Here is a good article about this: http://www.panitchlaw.com/documents/2006-1102-DRI-Article-on-Awards-of-Attorney-Fees-to-Prevailing-Parties-in-Trademark-Cases.pdf  And of course, then she has to collect which, judging from this article, is going to result in more attorney’s fees and she will get pennies on the dollar if he seeks bankruptcy.

        The USPTO is probably off the hook.  The federal government cannot be sued by a citizen unless it has waived sovereign immunity or consented to the suit.  The only places I know of that the government has waived immunity are for torts (e.g. assault, false imprisonment,) or breach of contract.  Average errors during the course of duty are exactly the kind of things sovereign immunity are meant to protect against.

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