Logan Paul and KSI (Olajide Olatunji), both renowned YouTube personalities and creators of the Prime energy drink, have landed themselves in hot water with the U.S. Olympic and Paralympic Committee due to the latest branding of their drinks bottles.

The Committee alleges that Prime has infringed its protected trade marks by using, among others, the terms OLYMPIC, OLYMPIAN, and TEAM USA on their latest ‘Olympic x Kevin Durant’-edition packaging, as well as in associated advertising and promotional campaigns. While the Committee does license its trade marks to third parties (specifically, it has an exclusive license agreement with Coca-Cola) it does not have any agreement with Prime, which has reportedly ignored requests to cease their allegedly infringing activity.

The Committee claims that Prime’s new branding could create confusion regarding the origin and quality of its goods, leading consumers to mistakenly believe that the Committee endorses Prime’s use of its trade marks. The Committee does not receive any Federal funding and therefore relies heavily on licensing revenues, and claims that Prime’s unlicensed use would divert business, damage its existing licensing arrangements, and allow Prime to unfairly profit from its ‘Olympic’ brands. The Committee is therefore seeking an account of profits associated with sales of the alleged infringing drink and compensation for alleged damage caused.

Thoughts from Dehns

From the perspective of Prime, the Committee’s infringement claim emphasises the importance of conducting proper due diligence before developing and launching new products. A quick check of the USPTO trade mark register would have identified the Committee’s ‘Olympic’ brands. Prime could then have contacted the Committee to seek a licence or, if the Committee was unwilling to grant a license (as appears likely in this case, given their existing, exclusive agreement with Coca-Cola), tweaked their packaging and advertising campaign accordingly, to avert or at least mitigate the impact of any conflict.

A more cynical Attorney (not this one, of course) might suggest that Paul and KSI, neither of whom are strangers to controversy, and in some instances appear to court it, may have been well aware of the Committee’s ‘Olympic’ marks prior to releasing their Olympic-edition branding. Perhaps inspired by skirmishes between other well-known brands (yes, we’re thinking of you, Colin (the Caterpillar)), it is plausible that Prime’s adoption of the ‘Olympic’ branding is a conscious decision, knowing that a spat with the Committee would draw greater media attention, acting as its own form of ‘litigation advertising’, and thereby furthering their brand’s already significant profile.  It is understood that Prime continued to market their product even after receiving a cease and desist letter and “numerous requests” from the Committee.

For the Committee, while the outcome of their claim remains to be seen, it serves as an indication that they are actively monitoring and will not tolerate the unlawful use of ‘Olympic’ marks, particularly during what is a critical period for them, with the Paris Olympics due to begin on Friday 26 July. The Committee may have been particularly concerned in this case, given that the Prime brand has previously come under scrutiny for its high-caffeine content and the potential negative effects that an association between such products and its ‘Olympic’ marks might have. Ultimately, however, even if the Committee is unsuccessful against Prime, it is possible that wider, ‘unseen’ benefits will accrue, with the action likely raising awareness amongst other third parties considering using ‘Olympic’ branding: the Committee is more than willing to call foul play.