You may remember from college a drinking game called a “power hour” – which challenges participants to drink a shot of beer every minute for 60 minutes. While it’s not a game for the faint of heart – or liver – it has been popular enough to spawn a variety of merchandise geared towards playing the game.
Among that was a unique set of songs by independent musician Ali Spagnola. In an effort to make her concerts, in her words, “more like a party” and stand out, she wrote 60 1-minute drinking songs. She plays those songs at her “Power Hour” concerts, where some folks in the crowd play the game by taking a drink every time the song changes. She also has a CD and other merchandise that she sells.
Then her singing career hit a bump in the road when she was slapped with a cease-and-desist order. It seems that a company had trademarked “Power Hour” for a set of DVDs meant to be used when playing the game. Convinced that this was a legal injustice, Spagnola took to the courts (and the U.S. Patent and Trademark Office) to fight the claim on the grounds that “Power Hour” was in wide use as a game and so the trademark wasn’t valid. In other words, “Power Hour” isn’t something you could trademark anymore than you could trademark “chess” and then block people from making chess sets.
“Essentially, my argument was that ‘Power Hour’ is not entitled to trademark protection because it is the commonly known name for a drinking game in which one shot of beer is consumed for one minute for a period of one hour,” Spagnola’s attorney, William Lang IV, told me. ”It was commonly used as the name of this game long before the trademark applicant filed his application, as well as before the applicant’s date of first use.”
“Therefore,” he continued. “If ‘Power Hour’ was protected as a trademark, anyone marketing products for playing Power Hour would be unable to use the commonly recognized name of the game for which their goods are utilized.”
After 3 years of wrangling and approximately $30,000 in legal fees for Spagnola, the U.S. Patent and Trademark Office’s Appeals Board agreed and found that “Power Hour” was not a legitimate trademark. You can read their decision here.
For her part, Spagnola is elated that her long fight is over, and has been thrilled with the support she’s received. “People have been really responsive. They’ve been tweeting their support and it’s been awesome.”