Patent trolls are infamous: they use vague, overly-broad patents on things like “podcasting” or “math” to threaten companies and individuals with lawsuits, in the hopes that they’ll agree to pay a settlement rather than face costly litigation. (For a primer, listen to This American Life’s “When Patents Attack.”) But lurking under a less sophisticated bridge is an even grimier creature: the trademark troll.
In a trademark troll story to end all trademark troll stories, Steve Roose tried to trademark “power hour.” Power hour--the drinking game where one consumes a shot of beer a minute for 60 minutes, usually to the tune of 60 one-minute-long songs. Steve Roose did not invent the power hour (obviously), but he used his trademark to go after Power Hour HQ, iPowerHour (which was scared into changing its name to iDrinkingGame) and Ali Spagnola, who performs power hour rock concerts and had a Power Hour Album and DVD. “It was like he trademarked poker,” says Spagnola.
Instead of obeying Roose’s "cease and desist" letters, Spagnola used her own money to mount a costly legal battle to overturn his trademark. As Spagnola puts it: “I fought for your right to party and won.”
Spagnola tells the whole complicated saga on her website, and in a much catchier version in this music video: “You Can Fight the Man (With a Beer In Your Hand)”:
Boiled down it’s this: Spagnola was a struggling artist, musician and composer of videogame scores, who decided the best way to gain an audience was to turn her concerts into power hours. “Do you have any song ideas?” she says she emailed her friends. “Because I now have to write 60 songs.”
She started performing those songs (“My Liver Hurts,” “This Song Drunk,” etc.) in a live show and then an album and DVD, which got the attention of Steve Roose, who acquired the trademark and used it to get Rhapsody, Amazon.com, and others to take down Spagnola’s work.
The tide turned with Reddit, which picked up an account of Spagnola’s story written by PowerHour HQ’s Pete Berg. “That was what convinced me that I should really go through with this,” Spagnola says. “It definitely made a difference to not be alone.” Buoyed by the support (and the donations), she got a lawyer and filed suit to overturn Roose’s trademark. She also put out a revamped “Power Hour Album” on a USB card embedded in a shot glass.
Three years and $30,000 later, in a ruling that cited both Wikipedia and Urban Dictionary, the US Patent and Trademark Office’s Trademark Trial and Appeal Board decided in her favor. “Power hour” cannot be trademarked, because it is “descriptive and lacks acquired distinctiveness.” In other words, it describes a game, and not a game that has become distinctive thanks to Steve Roose.
Spagnola has raised just over $40,000 to go on a 20-city power hour victory tour to celebrate. But her legal battles aren’t over. “Apparently Chicago doesn’t allow drinking games in establishments, so there may be some issues there," says Spagnola. "I also may be banned in Boston.”
On the other hand, she is seeking out some venues where the law shouldn’t be a problem. She’s taking votes to decide which college campus will win an "Epic College Party," and she’s also trying to win a contest put on by Axe deodorant to perform a show in space. (Seriously.)