Last month, the US Olympic & Paralympic Committee (USOPC) launched a new lawsuit against Prime Hydration, a beverage company founded by social media influencers and athletes Logan Paul and KSI.
The action concerns Prime's promotion of an Olympic-themed beverage in partnership with Olympic basketball player Kevin Durant. Not surprisingly, the case has garnered significant attention during the Paris 2024 games.
It is the most recent example of the USOPC's IP enforcement efforts and highlights the sometimes contentious realm of Olympics-related promotions. To understand this most recent spat–and how it differs from standard trademark infringement lawsuits—it is important to examine Olympic IP protection in the US, the role of the Ted Stevens Olympic and Amateur Sports Act in that protection, and Rule 40 of the Olympic Charter.
Overview of Olympic IP Protection
The Olympics are both a global sporting phenomenon and a commercial powerhouse. The imagery and branding associated with the Olympics has considerable value and its protection is of paramount importance to the International Olympic Committee (IOC).
The IOC delegates authority to protect Olympic IP to national Olympic committees like USOPC. Olympic IP enforcement serves several purposes, chief among them being to protect (1) the goodwill of the Olympic movement and (2) the commercial investment Olympic sponsors make for the right to use Olympic IP and athlete likenesses during the games and leading up to them.
In the US, the USOPC is responsible for enforcing Olympic IP rights such as 'Olympic,' 'Olympian,' 'Olympiad,' the iconic five interlocking rings, imagery of the Olympic torch and flame, 'Team USA,' 'Go For The Gold,' 'Let The Games Begin,' and 'Road to Paris.'
The USOPC's enforcement strategy involves vigilant monitoring and prompt legal action against unauthorised uses of Olympic IP or other material that could potentially infringe upon or dilute Olympic IP or otherwise suggest authorisation by, or association with, the Olympic movement.
Ted Stevens Olympic and Amateur Sports Act
Like any trademark owner in the US, the USOPC can rely on the federal Lanham Act (15 U.S.C. § 1051 et seq.), state statutes, and state common law for trademark protection.The USOPC, however, enjoys additional statutory protection via the Ted Stevens Olympic and Amateur Sports Act (the Act), passed in 1978 and amended in 1998. The Act authorises the USOPC to take civil action against unauthorised use "for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition...[of] any trademark, trade name, sign, symbol, or insignia falsely representing association with, or authorisation" by the USOPC or its affiliates. 36 U.S.C. § 220506(c).
The Act also allows the USOPC to take civil action against uses of the Olympic and Paralympic logos and the USOPC emblem, regardless of whether those uses are likely to cause confusion, mistake, or deception. In short, with limited exceptions for uses in existence as of 1950 and use of 'Olympic' within a certain part of the State of Washington, the Act grants the USOPC exclusive rights over Olympic IP within the US.
Chief among these exclusive rights is the USOPC's right to license others to use Olympic IP. The USOPC operates a robust licensing programme through which official Olympic sponsors are authorised to use Olympic IP and athlete likenesses in connection with a variety of goods and services. These sponsorships are often years long and cost millions of dollars, if not more. Similar deals are also negotiated at the international level with the IOC. For example, Coca-Cola and China Mengniu Dairy Company have an Olympic sponsorship deal spanning from 2021 to 2032 that is valued at $3 billion.
Rule 40
Another tool at the USOPC's disposal is Rule 40 of the Olympic Charter. First introduced in 1991, Rule 40 limits how competitors, team officials, and other team personnel who participate in the games can be depicted in advertising of non-Olympic sponsors during the games. The rule was revised in 2019, and the IOC established a set of key principles explaining how participants can engage in, and benefit from, commercial activities around the games. The USOPC has also issued guidance for US athletes.
Under this guidance, a non-Olympic sponsor seeking to run marketing targeted toward a US audience during the Rule 40 blackout period (July 18—August 13, 2024 for the Olympic Games, and August 21—September 10, 2024 for the Paralympic Games) must complete the USOPC's 'personal sponsor commitment' form via the USOPC's Rule 40 Permissions System and follow the guidelines available through the USOPC's Rule 40 permissions website.
In general, the USOPC's guidance allows two types of athlete marketing during the blackout period: (1) generic marketing of products or services featuring athletes or (2) athlete-recognition marketing reflecting a personal sponsor's support of an athlete's participation in the games. The two types of marketing cannot be combined, and there are limits on the number of posts that can be made and the media channels that can be used.
Past enforcement of Olympic IP
The USOPC and its predecessor, the US Olympic Committee (USOC), have successfully protected Olympic IP over the last several decades. A case from the 1980s involving use of 'Gay Olympic Games'—San Francisco Arts & Athletics v US Olympic Committee—even reached the US Supreme Court. The Supreme Court upheld the prohibition of SFAA's use of 'Olympic,' noting that the "legislative history demonstrates that Congress intended to provide the USOC with exclusive control of the use of the word 'Olympic' without regard to whether an unauthorised use of the word tends to cause confusion." San Francisco Arts & Ath v US Olympic Comm., 483 U.S. 522, 530 (1987).
With this statutory advantage, the USOPC and USOC have logged many other enforcement wins over the years, including against a summer camp's use of 'Camp Olympic,' an attempt to register the trademark 'Olympic Kids' for bakery products, and use of 'Olympic Meat Packers' (the company changed its name to 'Olympia Meat Packers'). These are just some examples of the USOPC's enforcement efforts that resulted in litigation. The USOPC often sends demand letters and resolves disputes out of court.
Lawsuit Against Prime Hydration
The USOPC's lawsuit against Prime Hydration is the most recent example of the USOPC's robust enforcement program. The lawsuit centres on Prime's Olympic-themed beverage collaboration with NBA All-Star and Olympic basketball player Kevin Durant, who was not a named party in the suit.
According to the complaint, Prime used unlicensed Olympic IP on its product packaging and in advertising on the Prime website and social media platforms. Prime's packaging and promotion of the beverage included use of Olympic trademarks such as 'Olympic,' 'Olympian,' 'Kevin Durant Olympic Prime Drink,' 'Team USA,' and 'Going For Gold.'
The lawsuit alleges that on July 10, 2024, the USOPC sent a demand letter to Prime concerning the alleged trademark infringement, but Prime continued its unauthorised use of Olympic IP. The USOPC claims that Prime's use unfairly capitalises on the goodwill associated with Olympic IP and that the alleged infringement has impeded the rights of official Olympic sponsors, particularly Coca-Cola (an Olympic beverage sponsor), to the tune of millions of dollars in damages.
While there was not much time between demand letter and lawsuit (nine days), timing was almost certainly dictated by the Paris Games, which began a week after the case was filed. Rule 40 may also have played a role. Though Rule 40 was not mentioned in the complaint, the case was filed one day into the Rule 40 blackout period and the advertising at issue involved a high-profile Olympic athlete.
Conclusion
The USOPC's swift action in this instance appears to be working. As of late July, Prime had removed the beverage from its website and social media, though it was still available for purchase online through other retailers.
Even if the case does not last much longer, it serves as a strong reminder about the risks associated with advertising featuring Olympic IP and athletes. Olympic IP is afforded very strong legal protection in the US, and the USOPC continues to be vigilant and successful in enforcing those rights.
Originally published by World IP Review
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