The battle over 'Power Hour' more than a brief binge
March 3, 2013 10:00 AM
Musician Ali Spagnola at her South Side home.
Musician Ali Spagnola has written a Power Hour drinking game album, which involves drinking one shot of beer between each of her 60 one-minute songs.
By Alex Zimmerman Pittsburgh Post-Gazette
Ali Spagnola loves painting, sculpture and drinking games.
In fact, she was willing to spend $30,000 and about two and a half years in a legal battle over the rights connected to one particular drinking game called "Power Hour."
A Power Hour usually involves drinking sixty 1.5-ounce shots of beer in 60 minutes, often set to music. That's about 7.5 bottles of beer.
A 28-year-old Carnegie Mellon University graduate, Ms. Spagnola began performing her own Power Hour when she was a senior. Her game featured original music and, of course, lots of drinking.
"I really started this because I was having trouble making my concerts interesting," she said. "It's tough to get people going to concerts for someone they don't know."
Her Power Hour performances originally started at dive bars in Oakland with nothing but a piano and acoustic guitar. She has worked her way to larger venues, such as the House of Blues in New Orleans and Brooklyn Bowl in New York, performing a more produced and electronic sound.
In her South Side apartment, she's converted her second bedroom into a recording studio. Her Power Hours performances are generically diverse, containing everything from Irish jigs to '80s rock. Her music also is available online or through a shot glass USB drive.
But Ms. Spagnola's Power Hours almost stopped forever when Steve Roose, a casual business acquaintance of Ms. Spagnola's and a fellow Power Hour entrepreneur, sent her a cease-and-desist letter in fall 2009 claiming a trademark of the term "Power Hour" as well as a copyright in connection with software and DVDs.
"I thought we were buddies," Ms. Spagnola said. "I thought we could talk it out."
Before sending the letters, Mr. Roose had reached out to Ms. Spagnola to help sell her "Power Hour Album" through his website, powerhourgame.com.
Their business relationship quickly soured, however, when Mr. Roose claimed the trademark and got online services, such as Amazon and Rhapsody, to stop distributing her music.
She decided to challenge the trademark, taking on the legal cause of all Power Hour website hosts who received a version of Mr. Roose's letter. And there are many of them out there, judging by a Google search of the term.
Mr. Roose did not respond to multiple requests for comment for this story.
When asked why she thought Power Hour was worth fighting for, Ms. Spagnola said, "I went back and forth a lot about it ... even now I think, 'What was I thinking?' "
She ended up plunging into the complicated field of trademark law.
One of the main questions was, how could Mr. Roose register a trademark of a phrase already in use by so many in connection with the popular drinking game?
The answer to that depends on whether the trademark is distinctive, meaning specific to a particular good or service.
According to Michael Madison, a University of Pittsburgh law professor who specializes in intellectual property, the U.S. Patent and Trademark Office doesn't typically have the resources to thoroughly research the tens of thousands of applications it gets each year.
Instead, the agency usually checks against current and pending trademarks, and -- if there are no conflicts -- publishes the application online in the Trademark Official Gazette for anyone to challenge within 30 days.
If there is no opposition, the registration is usually granted, according to Mr. Madison.
Trademark registrations are typically contested by larger companies that manage a portfolio of trademarks as part of business strategy, he said.
"Part of the problem here is that the whole system is set up for people who have regular commercial operations and pay attention to what the trademark office is doing," Mr. Madison said.
The Power Hour crowd might not fit that definition.
"The people who wanted to oppose [Mr. Roose's trademark application] have no regular reason to notice someone is trying to register a trademark," he said.
Ms. Spagnola's attorney, William Lang, noticed the trademark application after she told him about the cease-and-desist letters. Without those letters from Mr. Roose, she said, she wouldn't have been aware of the trademark process in time to contest it.
She began the process, but Mr. Roose was granted the registration even though Ms. Spagnola's time to oppose the trademark had not yet expired. In a letter to a Wisconsin address listed for Mr. Roose's company -- address dated May 25, 2010 -- the trademark office wrote that the registration was issued "due to a clerical error."
"I thought, 'You've got to be kidding me,' " Ms. Spagnola said.
She still had to contest the registration to ensure that Mr. Roose could not hold the trademark.
Other Power Hour supporters were equally taken aback.
"If they had done a single Google search for 'Power Hour' in 2009 when Steve Roose filed the trademark application, they would have found thousands of references to the drinking game," Pete Berg, one of Ms. Spagnola's online supporters, wrote in an email.
"Any sensible person wouldn't have issued this trademark."
Mr. Berg, who is a TV producer from Los Angeles, has a Power Hour website of his own and helped Ms. Spagnola's cause by unleashing the Reddit community on Mr. Roose. Reddit is a crowd-sourced discussion board in which participants can vote posts up or down, increasing or decreasing their visibility.
The online community, Mr. Berg said, "motivated [Ms. Spagnola] to really fight this case; it helped her raise some money for legal fees (enough to make a small dent in the bill); and 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."
After $30,000 in legal fees -- more than double Mr. Lang's original estimate -- and an exasperating legal battle, Ms. Spagnola successfully appealed the Power Hour trademark registration.
Mr. Lang said Mr. Roose never retained an attorney.
In its decision, the Trademark Trial and Appeal Board in Washington, D.C., citing Wikipedia and Urban Dictionary, wrote, "Clearly, both before and after January 2000, consumers have known the term [Power Hour] not as a source indicator, but rather as a long-established type of drinking game, independent of any use by applicant."
In other words, Mr. Roose's claim that Power Hour is distinctive and therefore warranted a trademark was rejected.
Ms. Spagnola was notified of the decision Dec. 31, 2012 -- New Year's Eve.