Video game publisher sued for infringing on castle’s trademark. CORAL CASTLE v. EPIC

A trademark is traditionally thought of as a word, phrase or symbol that tells consumers who produced a product. However, just about anything that signals the identifies the company that produced a product can be granted trademark protection. The key to a trademark is, the association consumers make between a trademark and the products produced by the trademark owner. Trademark law in the United States grants the original user of a trademark to exclude others from using a trademark to brand goods in a way that causes consumer confusion. If a company uses a trademark, which was first used by another company, to brand goods in a way that causes consumer confusion that can be considered trademark infringement. A trademark owner can file a lawsuit to stop trademark infringement with an injunction and to get monetary damages for trademark infringement which has occurred.

While trademarks are traditionally thought of as words or symbols, just about anything can be protected by trademark law. If a building signals to consumers the identity of a seller of products or services, a building can be registered as a trademark. The United States Trademark Manual of Examining Procedure provides that a three-dimensional configuration of a building may be registerable as a trademark, so long as it is used in such as way that it is or could be perceived as a trademark. There are several court cases which hold that the look of the interior and exterior of a business may be protectable trade dress. The most well known building trade dress case is Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), was a United States Supreme Court case where the Court held that Two Pesos, Inc. infringed upon the trademark of Taco Cabana, Inc. by copying the design of their restaurants.

Trademark protection for buildings in the real world can be complicated, but there is case precedent which supports the idea that copying the look of a building can be considered trademark infringement. The question then becomes is the copying of a trademarked building in a virtual world trademark infringement?

CORAL CASTLE, INC. v. EPIC GAMES, INC., 1:20-cv-23381 (S.D.FL 2020) is a case where a building owner in the real world claims its trademark is infringed by a building in a video game.

Defendant in this case is the publisher of Fortnite, one of the most popular and best-selling video games of all time. Defendant released Fortnite around September 2017. Since that time, the game has had sales exceeding $1 Billion USD. One of the features of Fortnite is a an ever changing location where players battle each other.

Each of the fictional locations in Fortnite is given a name. Some times the location names are made up, like “Dusty Divot,” “Loot Lake” or “Tilted Towers”. Other game locations have the names of fictional places from popular culture, like “Gotham City” and “Westworld.” In August 2020, a location called “Coral Castle,” was added to the game.

Plaintiff owns and operates a privately-operated tourist attraction named Coral Castle in Florida. The tourist attraction Coral Castle has an interesting past. Work started on the project in the 1920s. Edward Leedskalnin was the designer and builder of Coral Castle. The method by which Coral Castle is what makes it unique. Legends claims that Leedskalnin used supernatural powers to move limestone blocks weighing many tons. Coral Castle has been featured on many television shows and is referred to as Florida’s Stonehenge. Plaintiff CCI holds two (2) U.S. Trademark Registrations related to Coral Castle. The trademarks cover products such as apparel and museum services.

Plaintiff sued Defendant for trademark infringement alleging that the Coral Castle in Fortnite will lead to consumer confusion. Plaintiff claims that the use of the trademark Coral Castle on clothing sold by Defendant as well as the look and feel of the location named Coral Castle in Fortnite are likely to lead consumers to believe there is a connection with the real life Coral Castle.

While the Plaintiff has a strong case when it comes to merchandise bearing the trademark Coral Castle, the Plaintiff is breaking new ground claiming that a virtual world is infringing on the trademark of a real world building. It will be interesting to see how the Defendant responds in its answer.

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