ESTTA364735 08/24/2010 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding 9
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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA364735 Filing date: 08/24/2010 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91195461 Party Defendant Power Hour LLC Correspondence POWER HOUR LLC Address PO BOX 15732 NEWPORT BEACH, CA 92659 UNITED STATES [email protected] Submission Answer Filer's Name Steven Roose Filer's e-mail [email protected] Signature /Steven Roose/ Date 08/24/2010 Attachments ANSWER TO NOTICE OF OPPOSITION w ATTACHMENTS.pdf ( 34 pages )(2930355 bytes ) IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Binge Responsibly LLC ) ) Opposer, ) Opposition no. 91195461 ) v. ) Mark: POWER HOUR ) Power Hour LLC ) Serial No. 77805395 ) Applicant. ) ANSWER TO NOTICE OF OPPOSITION Applicant, Power Hour LLC, pro se, hereby submit its Answer to the Notice of Opposition filed by Opposer, Binge Responsibly LLC as follows with the following numbered Paragraphs corresponding to the number of the Paragraphs of the Notice of Opposition under the heading used in the Notice of Opposition: NOTICE OF OPPOSITION 1. Applicant admits the allegations of Paragraph 1. 2. Applicant admits Power Hour LLC is a limited liability company registered in the state of Wisconsin, owned by Steve Roose. The principal place of business is 5405 Golden Leaf Trail, Madison, WI 53704. Applicant denies using the address 515 Catalina Dr, Newport Beach, CA 92663. Applicant’s business mailing address is PO BOX 15732, Newport Beach, CA 92659. STANDING TO BRING THIS OPPOSITION 3. Applicant admits Opposer marketed said products prior to Applicant’s application date. However, Applicant had already created and continues to create existing Power Hour products claiming the term with TM symbols since 2000. Opposer’s said products were released on iTunes in 2007 and Amazon in 2008 are merely similar/copycat products to 2 of 15 already existing Power Hour products which Applicant had created and released as early as 2000. Opposer was essentially playing the Applicant’s game with her own content (music) and calling it her own Power Hour product. 4. Applicant is without knowledge or information sufficient to form a belief as to the allegations of Paragraph 4 and therefore denies the same. Applicant further affirmatively alleges Opposer is merely playing Applicant’s game with her own content. 5. Applicant admits the allegations of Paragraph 5. Applicant denies that the mark is common or generic. Applicant further affirmatively alleges mark is well known due to Applicant’s existing use of term, substantial product line with POWER HOUR mark, continued creation of products and marketing since 2000. COUNT 1: DESCRIPTIVENESS 6. Applicant admits that “Power Hour” is the name of a game played by numerous college students and other in which players consume one shot of beer each minute for an hour. Applicant further affirmatively alleges the term refers to Applicant’s products. A current search for Power Hour reveals over 50 prominently searched domain names all of which show Applicants products, are domains owned by Applicant, or make references to the existing unregistered mark claimed by Applicant since 2000. Applicant denies that the mark does not refer to any particular source of goods or services. Applicant is without knowledge or information sufficient to form a belief as to the remainder of Paragraph 6 and therefore denies the same. Games that predate the existence of the Applicant’s products are not similar. The predated games are not products with content nor were they referred to as Power Hour. The games were simply regarding taking shots of alcohol (not necessarily beer) and they were known as “Hour of Power”, “The Hour Power”, “Centurion” and so on. However, “Power Hour” refers to Applicant’s products since 2000. 7. Applicant denies the allegations of Paragraph 7. Applicant further affirmatively alleges that the there was no existing Power Hour game. The existing games which Opposer refers to were merely times acts of taking shots and were known under other names. Power Hour as used by the Applicant since 2000 specifically refers to Power Hour products where a timed drinking game is played with content. The Opposer’s statement that Applicants software is essentially a timer is furthest from the truth. Only 2 of the 15 products are solely timers. The original Power Hour software created in 2000 was comprised of content which appeared each minute. Content exists in all Power Hour games in the form of beer quotes, movie quotes, dares from The Beer Man, music, sing along songs, pictures, jokes and more. Only 2 of the 15 Power Hour products are timers only. Those are the Power Hour classic software and iPowerHour podcasts which were a results of consumers requesting a content free version so they could play their own music. Applicant has had software version and VCD (pre-DVD) since 2000 which include stated content. Full descriptions of Power Hour products are shown in Paragraph 14 and 21. 8. Applicant denies the allegations of Paragraph 8. Applicant further affirmatively alleges Power Hour is not merely descriptive of software. Power Hour refers to the company’s timed drinking games with content which are available in several digital media forms including software on CD or Digital Download, VCD, DVD, mobile phone software, iphone app, mpeg, and podcasts. Power Hour games include content and optional game lengths. Full descriptions of Power Hour products are shown in Paragraph 14 and 21. 9. Applicant denies the allegations of Paragraph 9. Applicant restates the allegations of Paragraph 8. COUNT 2: GENERICNESS 10. Applicant denies the allegations of Paragraph 10. 11. Applicant denies the allegations of Paragraph 11. Applicant restates the allegations of Paragraphs 15-19, 21, 23, and 26. 12. Applicant denies the allegations of Paragraph 12. The term Power Hour is nothing like Milk, Bread, Towel, or Car. All of these are clearly generic terms. Power Hour is a specific term relating to my products that is considered well-known, but not generic. Applicant restates the allegations of Paragraphs 5, 15-19, 21, 23, and 26. AFFIRMATIVE DEFENSES 13. Applicant further affirmatively alleges that as a result of its continuous substantial usage of its mark POWER HOUR since 2000, this mark is a valuable asset of Applicant and carries considerable goodwill and consumer acceptance of its products sold under the mark. 14. Applicant further affirmatively alleges Power Hour products are much more substantial than a software timer. The company’s products include the following: Power Hour Products Created by my Company Power Hour Software v6.9 (Previously v1-v4, v4.6, v5-5.1) - Created in 2000 Power Hour™ Version v6.9 is our upgraded Power Hour™ game. Choose from all popular game lengths: 1/2 Power Hour, Power Hour, Century Club, Double Trouble or Set a Custom Length. The Power Hour software keeps track of shots taken and each minute you will hear a loud burp as "DRINK!" flashes on the screen. Take your shot of beer and enjoy the random content like: famous beer quotes, movie quotes, sing-a-long songs, pictures, dares from The Beer Man and jokes. Power Hour Software v1-v6.9 is meant to be incorporated with your own background party music. Learn More: http://powerhourgame.com/how_to_play_power_hour_v6.9_beer_drinking_game_software.htm Power Hour Software Classic – Created in 2000 Power Hour™ Classic is our classic Power Hour™ game timer. Choose from all popular game lengths: 1/2 Power Hour, Power Hour™ and Century Club or Set a Custom Game Length. A large seconds countdown is centered in the screen. You have 60 seconds to refill your shot glass, belch and make room for the next shot. The software also keeps track of shots taken and each minute you will hear a loud burp as "DRINK!" flashes on the screen. The Power Hour Classic software is meant to be incorporated with your own background party music. Learn More: http://powerhourvx.com/power_hour_software_classic_timers.htm Power Hour VCD – Created in 2000 The Power Hour VCD was our first video formatted product. It consisted of the standard game lengths and displayed content each minute such as pictures, beer quotes, sing along songs, movie quotes and jokes. This product was later replaced by the Power Hour DVD as technology changed and the DVD format was more widely available. The Power Hour VCD is meant to be incorporated with your own background party music. Power Hour Software Sports Edition – Created in 2004 Power Hour™ Sports Trivia Edition is all about American Sports Trivia! Choose from Football, Basketball and Baseball. As all Power Hour™ games, we take care of recording shots and telling you its time to drink! You choose the length of the game. With the sports edition you will encounter a new trivia question each minute. Each player has 50 seconds to voice their opinion on the answer. In the last 10 seconds, the truth will be known! Who amongst the partiers is the biggest sports trivia buff of them all? (You can either let the players with the correct answer skip the shot, or have the players that answered incorrectly take an additional shot.) Learn More: http://powerhourvx.com/power_hour_software_sports_trivia.htm Power Hour DVD – Designed and Developed 2003-2005; Created in 2005 An all region DVD that plays world-wide on DVD Players, computers, x-boxes, playstations and so on. Choose from Power Hour™ and Century Club. The Power Hour™ DVD keeps track of shots remaining and tells you when to drink. Along the way you are entertained by The Beer Man. Be prepared for wild and provocative dares as each minute brings you a new challenge. The Power Hour DVD is meant to be incorporated with your own background party music.