Weintraub attorneys Scott Hervey and Jessica Marlo explore the US Olympic Committee’s lawsuit against Prime Hydration, co-founded by Logan Paul, for using Olympic trademarks in their ad campaign with Kevin Durant. Discover the power of Olympic trademarks and their protection!

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Show Notes:

Scott

The United States Olympic and Paralympic Committee has filed a lawsuit in the United States District Court for Colorado against Prime Hydration, a sports drink company co-founded by social media influencer Logan Paul. The complaint alleges that Prime Hydration’s ad campaign featuring NBA star and Team USA member Kevin Durant infringes numerous Olympic trademarks. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my colleague and huge Olympic fan, Jessica Marlo. We are to talk about this case and the unique aspects of Olympic trademarks in this installment of “The Briefing.”

Jessica, welcome back to “The Briefing.”

Jessica

Thank you for having me.

Scott

Jessica, I know your absolute fascination with the Olympics runs deep, so I thought this would be a fantastic topic to discuss with you.

Jessica

Absolutely. This is the perfect marriage of all of my favorite things. Having been a gymnast, going to the Olympic Gymnastics Trials every four years and working in the brand and licensing space, this is everything bundled into one. So I’m very excited to talk about this.

Scott

The trifecta. The gold, the gold medal, as they say. We’re about halfway into the Paris Olympics, but this lawsuit was filed just before the Paris Olympics started. But let me give you a little background on the Olympic trademarks. Under the Ted Stevens Olympic Amateur Sports Act, Congress granted the USOPC, exclusive ownership of certain Olympic-related words and symbols, including the name United States Olympic Committee, the words Olympic, Olympian, going for the Gold, Team USA and the International Olympic Committee’s symbol of the five interlocking rings. The act also permits the USOPC to authorize its contributors suppliers to use these Olympic-related words and symbols, and it also allows the USOPC to initiate lawsuits to address unauthorized uses. The USOPC’s rights are strong, and they were acknowledged as such by the Supreme Court in San Francisco Arts and Athletics versus the United States Olympic Committee, which involved a suit to injoin San Francisco Arts and Athletics use of Gay Olympic Games.

The Court noted that the legislative history demonstrated that Congress intended to provide the USOPC with an absolute monopoly over the use of the word Olympic. It doesn’t matter whether any unauthorized use of the word tends to cause confusion or not. All uses by parties other than the USOPC and those they authorize are prohibited, absolutely prohibited. Third-party marks that contain the designated Olympic-related words or symbols or any combination thereof cannot be registered on either the principle or the supplemental register, and nor can that matter be disclaimed. Those marks must be refused registration by the US Patent and Trademark Office on the grounds that the mark is not in lawful use in commerce. The US Olympic Trademark rights, they’re stronger than normal trademark rights, as you can see.

Jessica

Absolutely. The USOPC and its international counterpart, the IOC, are extremely diligent in protecting the Olympic marks, and this is all driven by revenue generated from sponsors. So Olympic sponsorships are the second biggest revenue source for the IOC right behind its broadcast rights. Sponsors pay hundreds of millions of dollars to be the exclusive sponsors of the Olympic Games, and Olympic organizers are required to make sure no one gets a free ride.

Scott

That’s right. And with the 2024 Paris Olympic Games underway, it’s no surprise that the USOPC is stepping up its enforcement activity. Actually, they stepped it up prior to the Olympic Games. With regard to prime hydration, the product packaging for its Kevin Durant collaboration shows use of the USOPC mark, Olympic, Olympian, Team USA, and going for gold. Ad copy for the product refers to the product as the, “Kevin Durant Olympic Prime Drink”. Let’s have our producer put up the drink can graphic on the screen here. You can see quite a number of references to Olympic trademarks and trademarks that are protected and owned exclusively by the USOPC. The USOPC claims that prime hydration failed to cease use of these Olympic marks after the USOPC sent Prime a cease and assist letter.

Jessica

Wow. Well, Coca-Cola has a license deal with the USOPC that gives it the exclusive use of Olympic trademarks, including Olympic and Team USA, for its beverages in the United States. The USOPC says that the license fee Coca-Cola pays for this right is significant. Understandably so. Clearly, a significant component of value is exclusivity. In its complaint against Prime Hydration, the USOPC argues that the revenue from being able to grant exclusivity, this revenue which is vital to the funding and the training and entering of US teams for the Olympic, Paralympic, Youth Olympic, Pan-American, and Parapan-American Games, is threatened when individuals and organizations use the USOPC trademarks without authorization.

Scott

That’s right. The complaint that was filed against Prime Hydration alleges a violation of the Ted Stevens Olympic and Amateur Sports Act, various violations of the Lanham Act, and a violation of the Colorado consumer protection laws and unfair competition laws. The complaint seeks damages, and it includes a claim for trouble damages and punitive damages and an injunction. But interestingly, I did not see on a docket, it might have been that I missed it, but I did not see on a docket a motion for a TRO, a temporary restraining order, which is odd given that these types of infringements, especially when time is of the essence, they’re usually partnered with a TRO.

Jessica

That’s interesting. What we’ve learned, if nothing else, is that you don’t touch the Olympic trademarks. The USOPC and its international counterpart, the IOC, will come after you swiftly and aggressively. It’s understandable when we’re talking about the money that’s coming from the licensing of these marks and how it really helps fund the training of these athletes and entering into the games. I mean, that’s something that really needs to be protected for the success of the country as it relates to its participation in any of the various Olympic, Paralympic, Youth, Olympic, Pan-American and Pan-American Games.

Scott

Absolutely. What I’m surprised over or with is that nobody flagged these issues to Prime Hydration. No one on Kevin Durant’s team, which I assume had approval over the product and ad copy. Nobody within Prime Hydration, none of its distributors. It just seems odd that everybody was asleep at the wheel here. But nonetheless, I think my expectation is that this will settle. I don’t think that we’re going to see any further action in the case itself. But if we do, we’ll be certain to- We’ll be back. Give you an update for sure. Jessica, thanks. Thanks for joining us. Is there anything that you want to say before we wrap this up?

Jessica

Go Team USA!

Scott

That’s what I thought. Thanks again for joining us.

Jessica

Thank you.

Scott

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