ESTTA364735 08/24/2010 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding 9

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. Learn More: http://www.powerhourdvd.com

Cell Phone Version – Created in 2005 With the Power Hour cell version, the phone turns into your own portable Power Hour™ Timer. It will countdown seconds remaining until next shot as well as the number of shots remaining in the game! Grab your favorite beer and your cell phone. Run Power Hour™ on your phone and chill in the bar or dorm room while playing games or chatting. Learn More: http://powerhourvx.com/cell_version.htm

Power Hour Podcasts – Created in 2008 iPowerHour represents The Power Hour timers are available in 3 versions for your apple gadgets and other cell phones as a video podcast download. Choose from our 3 popular game lengths: 1/2 Power Hour - 30 Shots of Beer in 30 Minutes, Power Hour - 60 Shots of Beer in 60 Minutes, Century Club - 100 Shots of Beer in 100 Minutes Learn More: http://www.ipowerhourgame.com Learn More: http://itunes.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=317155789

Power Hour App – Created in 2009 The Power Hour iPhone app works on your iPhone, iTouch, and iPad! The iPhone app must be marketed as Hour Power to be available on Apple platforms because they do not allow products to be marketed with the term Power Hour that relate to drinking. It has therefore been referred to as Hour Power. All other mobile media platforms planned to distribute the app will reference the product appropriately as Power Hour. Choose from standard lengths or set your own. Add Music (song changes every minute). Add Pictures (picture changes every minute). Change Notification (interval, sound, text, image, vibrate). Adjust Timers (color, size, and location). Change Background image to your own or a solid color. 7 Language options! Learn More: http://hourpowermusic.com Learn More: http://itunes.apple.com/us/app/hour-power/id366251310?mt=8&uo=6 15. Applicant further affirmatively alleges that the following Social Media Accounts have substantially made the term well known. www.facebook.com/powerhour www.youtube.com/powerhourgame

16. Applicant further affirmatively alleges that the following Online Stores have substantially made the term well known. www.powerhourstore.com (Since 1/2004) http://myworld.ebay.com/powerhour (Since 9/2002) http://www.amazon.com/shops/powerhour (Since 5/2004)

17. Applicant further affirmatively alleges that the following Domain Names have substantially made the term well known.

Domains Power Hour LLC has purchased to protect brand.

Domain Purchase Date BRADLEYDESIGNS.COM/POWERHOUR 1/2000 POWERHOURDVD.COM 1/22/2004 POWERHOURVX.COM 1/23/2004 BESTDRINKINGGAMES.COM 8/8/2004 BUZZ2GO.COM 8/25/2004 DVDDRINKINGGAME.COM 2/19/2005 PLAYPOWERHOUR.COM 5/9/2005 BUZZBOOST.COM 5/30/2005 BUZZTOGO.COM 5/30/2005 CENTURYCLUBDVD.COM 7/3/2005 DVDDRINKINGGAMES.COM 7/7/2005 DVDPARTYGAME.COM 9/1/2005 DVDPARTYGAMES.COM 9/1/2005 DOWNLOADPOWERHOUR.COM 10/31/2006 POWERHOURBLOG.COM 2/8/2007 POWERHOURMIXES.COM 2/8/2007 POWERHOURMUSIC.COM 8/29/2007 IPOWERHOURGAME.COM 10/11/2007 ITUNESPOWERHOUR.COM 10/11/2007 POWERHOURBEERGAME.COM 10/11/2007 POWERHOURDRINKINGGAME.COM 10/11/2007 POWERHOURGAME.COM 10/11/2007 POWERHOURTIMER.COM 10/11/2007 FREEPOWERHOUR.COM 10/14/2007 POWERHOURSTORE.COM 10/14/2007 POWERHOURPICS.COM 2/15/2008 POWERHOURPICTURES.COM 2/15/2008 POWERHOURDIRECTORY.COM 3/3/2008 POWERHOURNETWORK.COM 3/3/2008 POWERHOURADS.COM 10/6/2008 CENTURYCLUBDRINKINGGAME.COM 10/10/2008 CENTURYCLUBGAME.COM 10/10/2008 POWERHOURSOFTWARE.COM 1/12/2009

18. Applicant further affirmatively alleges the following Copyrights show prior use.

Power Hour Copyrights (Attached) Power Hour VX Software Copyright Number TX0006245515 (Creation 2000, Publication 9/14/2000, Registration 6/20/2005) Power Hour Software Copyright Number PA0001641252 (Creation 2000, Publication 9/14/2000, Registration 4/5/2009) The Beer Man Copyright Number VA0001666551 (Creation 2000, Publication 9/14/2000, Registration 4/2/2009) Power Hour DVD Copyright Number PA0001640966 (Creation 2005, Publication 5/7/2005, Registration 4/10/2009)

19. Applicant further affirmatively alleges the Power Hour Timeline of Events below show a well documented prior use.

Power Hour LLC Timeline of Events

1/1/2000 Adam Bradley creates first ever Power Hour software. Adam Bradley creates first ever Power Hour Video in VCD format. (Pre-DVD) Adam Bradley sells advertising space in game and offers as free download at www.bradleydesigns.com/powerhour Adam purchases www.powerhourvx.com to separate from his web design company and build the Power Hour Brand of Digital Media products and uses TM symbol after Power Hour term.

9/14/2002 Steve Roose begins to sell Power Hour products on ebay.com as “powerhour”. Only unique usernames are allowed. Steve is clearly the first. http://myworld.ebay.com/powerhour (Selling Power Hour PC Software, VCD)

1/21/2004 Steve Roose purchased Power Hour products from Adam Bradley. Steve continues to claim and market Power Hour brand with TM symbol. He also purchases domain names to show claiming of the term/protect his mark as well as copyright all of his products as they were created. 1/22/2004 Steve Roose registers www.powerhourdvd.com to promote Power Hour VCD and future Power Hour DVD game. (started creating new Power Hour product in DVD format)

1/23/2004 Steve Roose transfers www.powerhourvx.com from Adam to his company to promote game with the existing Power Hour branding. Products sold through newly created PayPal account. Later purchases domain www.PowerHourStore.com to have easy shopping experience for all Power Hour products.

2/10/2004 Steve Roose receives first class mail with postage showing this date, from Adam Bradley. Package contains source code for all Power Hour software versions and Power Hour video VCD format including bill of sale paperwork.

2/12/2004 Tomah Journal writes article on powerhourvx.com and planned TV appearance on Tech TV to play Power Hour software live in March.

3/2004 Steve Roose and Adam Bradley, creators of Power Hour Software and VCD appear on national television program called Tech TV’s Unscrewed with Martin Sargent where the play Power Hour live and explain the drinking game.

5/5/2004 Steve changes from sole proprietor to LLC. Power Hour VX LLC Filed in Wisconsin. Entity ID Number P043509

5/2004 Steve begins to sell Power Hour products on amazon.com. Only unique usernames are allowed. Steve is clearly the first. http://www.amazon.com/shops/powerhour (Selling Power Hour PC Software, VCD)

5/5/2004 Registers Account with Softwrap.com to digitally protect and distribute Power Hour software. Downloads of software had reached 100,000 per month. Power Hour brand was rapidly growing. Steve changes from free to pay per use. Approximately 5,000 licenses sold to date.

6/22/2004 Orders Return Address Labels from Keepsake Magic

6/23/2004 Orders DigitalWeb Install Wizard to further encrypt Power Hour Software. Existing software products and newly created versions move from free version to requiring purchase and activation.

9/2004 Enter agreement with Softwrap.com to protect Power Hour software and offer for sale online.

10/2004 Previous 12 months brainstorming of design and content fuels continued development of new Power Hour DVD version. Company is transforming original Power Hour VCD into DVD format and adding new content and game lengths.

1/31/2005 Received Power Hour DVD development/source code from designer Dan Roose via first class mail.

4/26/2005 Power Hour and Kino Inc enter agreement to develop professional Power Hour DVD

5/1/2005 Submit Power Hour DVD barcode to soundscan database.

5/9/2005 Searched for registered Power Hour trademarks and printed application to register my mark. Found application costly at time and decided to continue to use the TM symbols after Power Hour on all of my products, websites and marketing materials. I continued to register domains to help protect my brand.

5/17/2005 Changed banks and opened new Power Hour business banking account at Wells Fargo.

5/17/2005 Check for $1,550 to have Marcan manufacture Power Hour DVD.

5/26/2005 Kino Inc sends finished Power Hour DVD to Power Hour

5/27/2005 Marcan manufactures Power Hour DVDs

5/30/2005 Registers www.buzztogo.com as separate domain for future Power Hour mobile cell phone product. (previously marketed at powerhourvx.com)

5/31/2005 Power Hour receives professionally manufactured Power Hour DVDs from Marcan. Power Hour DVDs added to online powerhourstore.com, ebay Power Hour, amazon Power Hour and sent samples to retailers.

6/3/2005 Power Hour files for EIN with IRS

6/9/2005 Received City of Newport Beach, CA Business Tax Certificate

5/15/2005 Converts WI LLC to CA LLC

6/20/2005 Effective Date of Registration for Power Hour PC Versions Copyright TX 6-245-515 (Date of first publication 9/14/2000)

7/11/2005 Power Hour opens Credit Card Merchant Account with Wells Fargo and Authourize.net

7/14/2005 Receives CA Resellers Permit

11/20/2005 Filed Power Hour PC Versions Copyright TX 6-245-515

12/13/2005 Power Hour enters into Agreement with Felix Kanz to create Power Hour cell phone version. First mobile app. Licensing purchased from Enough Software

4/28/2006 Cancels CA LLC

2007 Steve Roose is developing first Power Hour drinking game podcasts planned to release on Apple iTunes.

2/8/2007 Registers www.powerhourmixes.com to share Power Hour music mixes and use for future Power Hour music mix and Power Hour album creator.

7/29/2007 Registers www.powerhourmusic.com to share Power Hour music mixes and use for future Power Hour music mix and Power Hour album creator.

10/11/2007 Registers www.powerhourgame.com and 40 other Power Hour domains to protect company name.

10/2007 Steve Roose releases first and only Power Hour drinking game podcasts in Apple itunes Store. Registers www.ipowerhourgame.com to advertise Power Hour on Apple Platforms. 2008 Steve Roose leads by securing “powerhour” on facebook.com. Company page is shown at http://www.facebook.com/powerhour

2/1/2008 Filed DBA Power Hour in Orange County, CA

7/2/2008 Enters into agreement with Spencer Gifts to sell Power Hour DVDs nationwide.

7/2/2008 Forms new Power Hour LLC in WI – Entity ID P052170

12/4/2008 Purchases Business Insurance for Requirement by Spencers Gifts LLC

12/9/2008 Receives Commercial General Liability Insurance from American Family Insurance Group

4/2/2009 Power Hour Software Computer Program, Text and Artwork Copyright Registered PA 1- 641-252 (Date of first publication 9/14/2000)

4/2/2009 Power Hour Beer Man 2-D Artwork Copyright Registered VA 1-666-551 (Date of first publication 9/14/2000)

4/10/2009 Power Hour DVD Entire Motion Picture Copyright Registered PA 1-640-966 (Date of forst publication 5/7/2005)

8/14/2009 After increased abuse from competitors on the use of my term “Power Hour” as trademark/brand, I decided that claiming the term with a TM symbol and having the mark unregistered was too risky and difficult to enforce. I immediately applied for Power Hour federally registered trademark.

1/19/2010 Trademark Published for Opposition

2/18/2010 Extension of Time to Oppose granted to Binge Responsibly, LLC until 3/20/2010. Binge Responsibly is a known entity by Power Hour LLC. Alicia Spagnolia (Opposer) knew of the existence of Power Hour LLC and it’s products. Any search of the term Power Hour game would have resulted in my company’s domain names and products appearing online as well as a clear understanding that I have created and claim Power Hour as my brand over the past 10 years with the TM symbol. Alicia disregarded this and created similar products to that which Power Hour LLC previously released. All of Power Hour LLC’s Power Hour products were created first and prior use is shown by copyrights, sales history, and documentation noted in this timeline.

3/11/2010 Letter of Protest accepted (Internal Protest/Review)

4/27/2010 Registered – Principal Register. Power Hour Trademark Registered For: Digital media, namely cds, dvds, software featuring a timed drinking game where players take a shot of beer every minute for an hour, in class 9 (US CLS 21, 23, 26, 36 and 38) Registration Number: 3,780,534; Serial Number 77-805,395 Filed 8/14/2009

5/17/2010 TM Update: Request to Cancel Inadvertently Issued Registration Received, Assigned to Petition Staff 20. Applicant further affirmatively alleges the TM symbol has been used in association with

Power Hour since it’s first use in 2000 by Applicant. Applicant’s products are regarded as first products in each form of digital media by 3rd parties as shown in attachments.

21. Applicant further affirmatively alleges the term Power Hour is not merely descriptive of a game length. My company has named every game and product “Power Hour” along with its version

(DVD, software, VCD, app, podcast, etc) for the past 10 years. Power Hour is associated with a collective group of digital media products which I have created and named “Power Hour” regardless of the digital media form and regardless of the length of the game. Facebook is the most popular social media platform and well represents the general public’s understanding. A search on Facebook of “Power Hour” will show you that more people associate the term Power Hour with my company’s products then with a general interest in a drinking game where a connection to my company is unknown. My Power Hour page has 942 fans where the association to the game outside my company has only 750 likes. Once again, I claim that the term is Well Known because of the past 10 years of marketing and product creation on my company’s behalf. The group unrelated to my company is still talking about a game related to my company. When Applicant has over 15 products that have reached millions over the past 10 years, the term is always associated with the game however the company’s connection can be lost with the product as people like the Opposer create similar product claiming them as their own Power Hour or simply attempt to play the game without Applicant’s products and continue to call it Power Hour.

22. Applicant further affirmatively alleges the IDEA/concept of a game where you take a shot of alcohol (not necessarily beer) for a specified period of time has been around for centuries, however the term Power Hour has never been clearly associated with an hour-long beer drinking game until Adam Bradley and my company did this 10 years ago. Applicant’s Power Hour games have always been marketed as timed beer drinking games with content in the forms of music, jokes, dares, quotes, pictures and more. This was never done in the past with the term Power Hour. Today people associate Power Hour with a game involving music, pictures, video, dares, jokes, etc because of the games named

Power Hour that I created.

23. Applicant further affirmatively alleges that Applicant’s company has additionally significantly made the Power Hour term well known by completing the following: 10 years of prominent website search engine optimization resulting in heavy organic search traffic; thousands of dollars spend in pay per click advertising on google, msn and yahoo; over 2 MILLION downloads of the Power Hour software when it was free in 2000-2004; over 5,000 sales in Power Hour software since 2004; over

20,000 sales of the Power Hour DVD since 2005; prominent online store on amazon, ebay, froogle, and the Power Hour Store; playing Power Hour products on national television in 2004; giving away Power

Hour software and Power Hour DVDs on Sirius XM’s Maxim Radio Satellite Channel in 2005; several other articles in the media.

24. Applicant further affirmatively alleges that since 2000, there have been numerous other copy cat products that appeared as a result of me building the Power Hour game products and brand to what it is today. The Opposer is one of many people that have tried piggybacking off of Applicant’s success in branding the term Power Hour and creating a line of Power Hour products. The term is clearly not generic. The term is well known, and that is the result of the last 10 years of marketing and product creation by my company. Should the Opposer have actually created any one Power Hour product prior to mine, Applicant might understand such opposition. However, Applicant’s company timeline thoroughly documents it’s use years before Opposer’s and any other entity. It is Applicant’s own fault that he did not register the term when he purchased all of the original products and developed the brand. Applicant read and understood from the USPTO website that a term was not required to be registered to be considered a trademark. Copied from USPTO website. “Do I have to register my trademark? No, but federal registration has several advantages, including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.”

(http://www.uspto.gov/faq/trademarks.jsp#Basic001)

25. Applicant further affirmatively alleges he understood a registered mark was not needed and that he could just add TM after the term to protect his claim. Wikipedia states that TM is a symbol

(for an unregistered trade mark, that is, a mark used to promote or brand goods). Applicant has done that since day one and it had worked effectively against most competition. That coupled with all copyrights and use history gives Applicant substantial proof on having built the brand with the trademark unregistered.

26. Applicant further affirmatively alleges when Applicant started his company and created products, no Power Hour product or Power Hour entity existed. When Opposer started some 7 years later, any search of online stores like ebay, amazon, the copyright office, domain names, etc would have shown that a Power Hour entity and Power Hour products existed. All of those being the Applicant’s and showing the term with the appropriate TM symbol. With that said, Applicant feels it was unethical and risky of the Opposer to continue to create similar products with the same branding. Proof of first use should prevail over whether Applicants’ mark was federal registered or unregistered. Applicant was still claiming and enforcing it’s mark. There was no other federal trademark claims. The Opposer’s products were created after Applicant’s. The Opposer’s products never used the TM symbol to make such claim.

The Opposer’s continued use of Applicants mark was at her own risk.

27. Applicant further affirmatively alleges in addition to always using the TM symbol,

Applicant actively copyrighted all its products, registered user account in all major online store and websites with the Power Hour name and registered a substantial number of domain names to prevent others from copying it’s products and ideas and releasing them with the term “Power Hour” which

Applicant was claiming as my brand. Knowing now that having a federally registered mark would have given Applicant indisputable grounds of proof, Applicant does wish that he would have initially chosen that route.

28. Applicant further affirmatively alleges he has made substantial efforts to protect his unregistered mark and the history/proof of use should further supplement his application for a registered mark, which was granted prior to this Opposition’s response. The fact that the mark was inadvertently issued and registered after a USPTO internal review on the term and history also reinforces that the term is not generic or merely descriptive. It is clearly a term which can be trademarked.

REQUEST FOR REGISTRATION

WHEREFORE, Applicant respectfully requests that the Notice of Opposition dismissed and that

Applicant’s mark be allowed to proceed with registration.

Respectfully submitted,

By:______Steven Roose Power Hour LLC PO Box 15732 Newport Beach, CA 92659 Applicant

CERTIFICATE OF SERVICE

I hereby certify that the above and foregoing Answer to Notice of Opposition with Affirmative

Defenses was served upon Opposer by depositing a copy of same in the United States mail, first class postage prepaid, on this 24 day of August, 2010, addressed to:

William F. Lang IV Lang Patent Law LLC 640 Fourth Street Beaver, PA 15009 Attorney for Opposer

______Applicant WebVoyage Record View 1 Page 1 of 1

Public Catalog

Copyright Catalog (1978 to present) Search Request: Left Anchored Title = power hour Search Results: Displaying 7 of 10 entries

Power Hour VX.

Type of Work: Computer File Registration Number / Date: TX0006245515 / 2005-06-20 Application Title: Power Hour; Century club: v1-v4, v4.6, v5-5.1, sports edition. Title: Power Hour VX. Description: Computer program on CD-ROM. Notes: PC version. Copyright Claimant: Steven Matthew Roose, 1982- Date of Creation: 2000 Date of Publication: 2000-09-14 Authorship on Application: computer programming: Steven Matthew Roose. Previous Registration: Preexisting material: Power Hour pc version v1-v4.1 by Adam Bradley, 2000. Basis of Claim: New Matter: additions. Copyright Note: C.O. correspondence. Names: Roose, Steven Matthew, 1982- Bradley, Adam

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Copyright Catalog (1978 to present) Search Request: Left Anchored Title = power hour Search Results: Displaying 3 of 10 entries

Power Hour.

Type of Work: Computer File Registration Number / Date: PA0001641252 / 2009-04-02 Application Title: Power Hour. Title: Power Hour. Description: Electronic file (eService) Copyright Claimant: Steven Matthew Roose, 1982- . Address: 5405 Golden Leaf Trail, Madison, WI, 53704, United States. Date of Creation: 2000 Date of Publication: 2000-09-14 Nation of First Publication: United States Authorship on Application: Steven Matthew Roose, 1982- ; Domicile: United States; Citizenship: United States. Authorship: computer program, text and artwork. Alternative Title on Application: Power Hour VX Power Hour Software Power Hour Timer Power Hour Clock Century Club 1/2 Power Hour Double Trouble Sick & Twisted Power Hour Classic Classic Power Hour Power Hour Sports Edition Power Hour VX Sports Edition Power Hour VX v5.1 Power Hour VX v6.9 Power Hour v6.9 Power Hour VX v1 Power Hour VX v2 Power Hour VX v3 Power Hour VX v4

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Power Hour VX v5 Power Hour VX v4.6 Rights and Permissions: Steven Matthew Roose, Power Hour LLC, 5405 Golden Leaf Trail, Madison, WI, 53704, United States, (949) 357-8185, [email protected] Copyright Note: C.O. correspondence. Names: Roose, Steven Matthew

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Copyright Catalog (1978 to present) Search Request: Left Anchored Title = power hour Search Results: Displaying 2 of 10 entries

Power Hour.

Type of Work: Motion Picture Registration Number / Date: PA0001640966 / 2009-04-10 Application Title: Power Hour. Title: Power Hour. Description: Videodisc (DVD) + CD-ROM. Copyright Claimant: Steven Matthew Roose, 1982- . Address: 5405 Golden Leaf Trail, Madison, WI, 53704, United States. Date of Creation: 2005 Date of Publication: 2005-05-07 Nation of First Publication: United States Authorship on Application: Steven Matthew Roose, 1982- , employer for hire; Domicile: United States; Citizenship: United States. Authorship: entire motion picture. Alternative Title on Application: Power Hour VX Power Hour VX DVD Power Hour DVD The Beer Man Says... DVD Drinking Game Century Club Century Club DVD Power Hour VX The Beer Man Says... DVD Drinking Game Rights and Permissions: Steven Matthew Roose, Power Hour LLC, 5405 Golden Leaf Trail, Madison, WI, 53704, United States, (949) 357-8185, [email protected] Copyright Note: C.O. correspondence. Names: Roose, Steven Matthew

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Copyright Catalog (1978 to present) Search Request: Left Anchored Title = power hour Search Results: Displaying 6 of 10 entries

Beer Man.

Type of Work: Visual Material Registration Number / Date: VA0001666551 / 2009-04-02 Application Title: Beer Man. Title: Beer Man. Description: Electronic file (eService) Copyright Claimant: Steven Matthew Roose, 1982- . Address: 3209 Clay St Apt A, Newport Beach, CA 92663. Date of Creation: 2000 Date of Publication: 2000-09-14 Nation of First Publication: United States Authorship on Application: Steven Matthew Roose, 1982- ; Domicile: United States; Citizenship: United States. Authorship: 2-D artwork. Adam Bradley; Domicile: United States; Citizenship: United States. Authorship: 2 -D artwork. Alternative Title on Application: The Beer Man Power Hour Beer Man Power Hour VX Beer Man Rights and Permissions: Steven Matthew Roose, Power Hour LLC, 5405 Golden Leaf Trail, Madison, WI, 53704, United States, (949) 357-8185, [email protected] Names: Roose, Steven Matthew, 1982- Bradley, Adam

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How to Play Power Hour™ v6.9 Beer Drinking Game Software

Who loves Power Hour™ v6.9?

• College Students • Military Branches • Bachelors & Bachelorettes • ANYONE that loves to Party!

Playing Power Hour™ is great for...

• House Parties & Birthdays • Fraternity & Sorority Parties • Pre-Bar Time (Night on the Town) • Pre-Gaming (Sport Events) • Bachelor & Bachelorette Parties (Stag & Stagette Parties) • Quick game, optional lengths.

Take 60 Shots of beer in 60 minutes to complete a Power Hour! Power Hour™ Software 60 Shots in 60 Minutes = 7 Beers in 1 Hour! Experience a new kind of buzz! Beats Beer Pong and Beer Bong buzzes!

How to Play The idea of Power Hour™ has existed for centuries. It is quite simple... Take a shot of beer every minute for an hour.

Before you know it, you drank nearly 7 beers in an hour. You won't feel sick; however belching is a side effect! The buzz is the most powerful kind out there and it will keep you entertained for the rest of the night.

We have spiced up this age old drinking game, making it the top selling drinking software in the world! You no longer simply watch the clock.

We have bundled it with built in timers, drink notification sounds and fresh content that will keep you entertained all night. Game Name Length (Minutes/Shots)

For those of you in a rush or wanting to Half Power Hour 30 have contests to set records, we have Power Hour 60 added multiple game lengths in addition to Century Club 100 the standard "Power Hour". Double Trouble 120 Sick & Twisted Custom

Why it's so Fun! Built-in game content with timed drinking and friends is a recipe for one crazy party. The game timers keep you on track with when to take your next shot and how many minutes remain in the game. You will find yourself struggling to refill a shot glass in under 60 seconds without spilling!

http://powerhourgame.com/how_to_play_power_hour_v6.9_beer_drinking_game_softwar... 8/24/2010 How to Play Classic Power Hour™ Beer Drinking Game with Timers Page 1 of 2

How to Play Power Hour™ Classic Beer Drinking Game Software

Who loves Power Hour™ Classic Timers?

• College Students • Military Branches • Bachelors & Bachelorettes • ANYONE that loves to Party!

Playing Power Hour™ is great for...

Take 60 Shots of beer in 60 minutes to complete a Power Hour! Power Hour™ Classic Software 60 Shots in 60 Minutes = 7 Beers in 1 Hour! Experience a new kind of buzz! Beats Beer Pong and Beer Bong buzzes!

How to Play The idea of Power Hour™ has existed for centuries. It is quite simple... Take a shot of beer every minute for an hour.

Before you know it, you drank nearly 7 beers in an hour. You won't feel sick; however belching is a side effect!

The buzz is the most powerful kind out there and it will keep you entertained for the rest of the night.

Our Classic Power Hour™ software is our most basic program and works simply as a Power Hour™ timer with drink notification sounds.

For those of you in a rush or wanting to have contests to set records, we have Game Name Length (Minutes/Shots) added multiple game lengths in addition to the standard "Power Hour". Half Power Hour 30 Power Hour 60 Century Club 100 Double Trouble 120 Sick & Twisted Custom

Why it's so Fun!

A party on auto-pilot with no skills required! Achieve a new kind of beer buzz!

The game timers keep you on track with when to take your next shot and how many minutes remain in the game.

You will find yourself struggling to refill a shot glass in under 60 seconds without spilling!

Anything can and will happen. Have a camera nearby and get ready for the wildest party you've thrown. You haven't experienced a buzz until you've achieved it playing Power Hour!

See it In Action! (View more at www.PowerHourPictures.com)

http://powerhourgame.com/how_to_play_power_hour_classic_beer_drinking_game_softw... 8/24/2010 How to Play Power Hour™ Sports Trivia Beer Drinking Game Software - Football, Base... Page 1 of 3

How to Play Power Hour™ Sports Trivia Beer Drinking Game Software

Who loves Power Hour™ Sports Trivia?

• College Students • Military Branches • Bachelors & Bachelorettes • ANYONE that loves to Party!

Playing Power Hour™ is great for...

Take 60 Shots of beer in 60 minutes to complete a Power Hour! Power Hour™ Software 60 Shots in 60 Minutes = 7 Beers in 1 Hour! Experience a new kind of buzz! Beats Beer Pong and Beer Bong buzzes!

How to Play The idea of Power Hour™ has existed for centuries. It is quite simple... Take a shot of beer every minute for an hour.

We have spiced up this age old drinking game, making it the top selling drinking software in the world! You no longer simply watch the clock.

We have bundled it with built in timers, drink notification sounds and over 1,500 sports trivia questions! Game Name Length (Minutes/Shots) For those of you in a rush or wanting to have Half Power Hour 30 contests to set records, we have added multiple game lengths in addition to the standard "Power Power Hour 60 Hour". Century Club 100 Double Trouble 120 Sick & Twisted Custom

Why it's so Fun!

Over 500 sports trivia questions per category. Test your knowledge in Football, Basketball and Baseball trivia.

The game timers keep you on track with when to take your next shot and how many minutes remain in the game. You will find yourself struggling to refill a shot glass in under 60 seconds without spilling!

Have a blast tailgating and seeing which of your friends is the biggest sports know-it-all!

Power Hour™ Sports Trivia is a Blast!

Over 500 trivia questions per sports category. One trivia question appears per minute. Questions appear at random and do not repeat!

With 1,500 sports trivia questions built in, you will never play the same game twice. When tailgating and playing Power Hour™ nything can and will happen. Have a camera nearby and get ready for the wildest tailgating or sports party you've thrown.

You haven't experienced a buzz until you've achieved it playing Power Hour!

http://powerhourgame.com/how_to_play_power_hour_sports_trivia_beer_drinking_game_... 8/24/2010 Power Hour™ DVD | World's Favorite Drinking Game - Frat Parties, House Parties, Bac... Page 1 of 1

Welcome to the Power Hour™ DVD Website

The World's Favorite Drinking Game is now offered on DVD! Available! Buy Now | Download from Amazon

Take a shot of beer every minute for an hour to experience a new kind of beer buzz!

Encounter contests, rules, dares, and trivia from The Beer Man!

Game Lengths Power Hour - 60 Minutes/Shots of Beer

Century Club - 100 Minutes/Shots of Beer

Each player that conquers a Power Hour™ will have had about 7 beer in one hour!

Purchase from Rent or Purchase Power Hour™ Store Amazon Video On Demand

How To Play Compatibility Photo Gallery More Versions

http://www.powerhourdvd.com/ 8/24/2010 Power Hour™ VX Cell Phone Version - Download Cell Phone Drinking Game Power Ho... Page 1 of 2

New Power Hour Website

Cell Phone Version - Visit www.buzztogo.com

This version has been discontinued. Check out our top-selling Power Hour™ DVD

If you do not see your phone listed as a supported phone, it most likely can still run Power Hour™ cell version! However, vibrations, soud effects, and flashing backlights during the game may not work.

If your phone is not listed, please install the generic application available at www.buzztogo.com when browsing the web with your phone. Simply choose from large screen (176px by 200px and up) or small screen (128px by 128px and up) versions.

Check and see if Your Phone was Supported

The cell phone version allows you to choose from the 3 basic game play options.

Power Hour: 60 Minutes Century Club: 100 Minutes Sick & Twisted: Non-Stop

The phone turns into your own portable Power Hour™ and Century Club Drinking Games Timer.

It will countdown seconds remaining until next shot as well as the number of shots remaining in the game! Grab your favorite beer and your cell phone. Run Power Hour™ on your phone and chill in the bar or dorm room while playing games or chatting.

Your phone will alert you that it is time to drink. Each minute you will here the token "BURP" that the Power Hour™ Drinking Game is known for. Your cell phone will also vibrate, and flash the backlight when it is time to drink, based on the game settings you choose.

Customers often refer to this as the Power Hour™ Timer of Power Hour™ Program. This product has been pulled from production, however we have decided to leave the information posted for viewing purposes since we receive many questions about the status.

http://powerhourvx.com/cell_version.htm 8/24/2010 iPowerHour | The Power Hour Drinking Game timers for your iPhone, iPod... http://www.ipowerhourgame.com/

iPowerHour | The Power Hour Drinking Game timers for your iPhone, iPod, iTouch, iTunes, and more!

The power hour timers are available in 3 versions for your apple gadgets and other cell phones. Learn How to Play iPowerHour | Download

Choose from our 3 popular game lengths: 1/2 Power Hour - 30 Shots of Beer in 30 Minutes Power Hour - 60 Shots of Beer in 60 Minutes Century Club - 100 Shots of Beer in 100 Minutes

1 of 1 8/24/2010 11:24 AM Facebook (8) | Power Hour Page 1 of 2

1 7 Search Home Profile Account

Power Hour Anyone else love Stella? about an hour ago clear

Wall Info Photos Discussions Video

Get More What's on your mind? Connections

Attach: Share Get more people to like your Page with Facebook Ads! Preview below. Power Hour + Others Power Hour Just Others Settings Power Hour Edit Page Power Hour Anyone else love Stella? Promote with an Ad about an hour ago via Facebook for iPhone · Comment ·Like · Promote Add to My Page's Favorites Suggest to Friends Power Hour whats your favorite beer? im looking to test a few new Remove from My Page's Favorites flavors! Anyone else love Stella? Yesterday at 10:26am · Comment ·Like · Promote Steve Roose likes this. 60 Shots of Beer in 60 Minutes http://www.60SHOTS.com/ View all 6 comments Like http://www.PowerHourDVD.co m/ Power Hour Never had a smithwicks. Hmm. Gonna look for that http://www.PowerHourMusic. about an hour ago · Like · Delete com/ http://www.PowerHourStore. Jen Blake Lauritano I have no idea, but it has 9.5% allc and is a very com/ nice beer, I am in Florida;) http://www.TheBottleBong.c 29 minutes ago · Like · Delete · Flag om/ Write a comment...

I nformation Power Hour did you enter the bottle bong contest? winners have Founded: been posted. are you one? 2000 http://www.facebook.com/bottlebong Bottle Bong I nsights Consumer Product: 53 people like this. See All

111 Monthly Active Users 1 Daily New Likes 0 Daily Post Views August 20 at 10:00pm · Comment ·Like · Share · Report 3 Daily Post Feedback Power Hour Insights are visible to page admins only. Black Bottle Bong for Beer Bottles www.amazon.com 13 Friends Like This BONG ANY SIZE BOTTLE OF BEER IN SECONDS! 6 of 13 Friends See All

August 16 at 11:27am · Comment ·Like · Share · Promote · Report

Mark Roose Dan Ryan Kelly Roose Peter D. Nelson the black mamba, nice. August 16 at 4:25pm · Like · Delete · Flag

Write a comment...

Lisa DeAnna Summer 'Borgstr Roose Smith Power Hour DEAL TIME! om' Roose Everyone that purchases the power hour drinking game software version 6.9 TODAY...I will mail you a free Power Hour DVD as well. these games have the power hour and century club timers and tons 941 People Like This of dares from the beer man along the way. always a great way to get See All buzzed and have a wild house party.

http://www.p... See More Power Hour™ v6.9 Beer Drinking Game Software Emma Jake Sasha Whelan Rencsok Berek www.powerhourgame.com This is my description.

Lyss Phillip Lee O August 14 at 1:00pm · Comment ·Like · Share · Promote · Report Stabler Maner Connor Peter D. Nelson likes this.

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Tim McGraw: Don't take Info Favorite Share Playlists Flag the girl - music video queneck - 2,261,371 views How to re-thread the hose into the Beer Bottle Bong Like From: powerhourgame | January 06, 2010 | 619 views Senior Adult Choir Hip If the hose becomes flush with the bong wall, it may be pushed inside causing the hose to come loose. To prevent this, we Hop (Short Version) recommend leaving 1/4 of the hose sticking out the right side of the bong. Do not worry about the length of the hose going into FSM803 - 1,048,257 views the beer bottle. This does not make a difference if you use the hose correctly. If the hose comes loose, simply grab one end and start inserting it into the carb hole from the outside. Push the hose through 1" at a time make sure to direct... the (more hose info) see all View comments, related videos, and more

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2 of 3 8/24/2010 11:09 AM eBay My World - powerhour http://myworld.ebay.com/powerhour

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Positive Feedback: 100% Detailed Seller Ratings (last 12 months) Feedback score: 542 Criteria Average rating Number of ratings [How is Feedback calculated?] Item as described 10 Communication 10 Shipping time 10 Shipping and handling charges 10 Member since: Sep-14-02 Location: United States

Views: 443 total Latest Feedback See all Items for sale Add to favorite sellers Great communication. A pleasure to do business with. Aug-31-09 07:48 Priva Contact member Seller: ganmaoaini (1870 )

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BLUE Beer Bottle Bong - What everyone should know about me Faster than Funnels and Creator of the Power Hour Drinking Games Hoses Bong ANY Size Bottle of Things I sell Beer in Seconds! 12, 24, Power Hour DVD, Power Hour, Drinking Game, Beer Game, Bachelor Party Gift, Bachelorette Party Gift, Bachelor 40's Party Game, Bachelorette Party Game US $9.99 Time Left: 7d 00h 30m Things I collect 15s Pez, Coins, Baseball Cards, Football Cards, Yogi Bear, Brett Favre Autographs

Languages spoken: English, German

POWER HOUR DVD Drinking Game Buzz Like a Beer Bong US $9.99 Time Left: 27d 23h 13m 03s

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Monthly Specials For August

Power Hour DVD Drinking Game Power Hour Drinking Game Version 6.9 Pink Bottle Bong - Bong any Size Bottle of Beer $14.95 $9.99 $14.95 $9.99 $11.95 $9.99 Save: 33% off Save: 33% off Save: 16% off

New Products For August

Hour Power Music Timer iPhone App $1.99 Power Hour Drinking Game Classic Version How to Build a Tennis Ball Cannon / Potato Gun $10.00 eBook $7.95

Pink Bottle Bong - Bong any Size Bottle of Beer Power Hour Drinking Game Sports Edition Black Bottle Bong - Bong any Size Bottle of $11.95 $9.99 $11.95 Beer Save: 16% off $11.95

iPowerHour - Power Hour timer for iPhone Blue Bottle Bong - Bong any Size Bottle of Beer Red Bottle Bong - Bong any Size Bottle of Beer

$9.99 $11.95