The past week has been remarkably turbulent for popular video game developer Epic Games, and the lawsuit locomotive doesn’t seem to be slowing down anytime soon. Epic might have been ready for a lawsuit against Apple, but it doesn’t look like they saw this other lawsuit coming.
Coral Castle, Inc. (CCI), who operates a museum in southern Florida of the same name, filed a lawsuit last week (August 14) against Epic Games, Inc. (EGI), makers of the hit-sensation video game Fortnite. The initial complaint claims that EGI used the mark CORAL CASTLE in the current season of the Fortnite video game, without CCI’s permission. Aside from the alleged trademark infringement, they are also claiming likelihood of confusion, bad faith, loss of sales and profits, unfair competition, trademark dilution, and that due to EGI’s actions, CCI has “suffered and will suffer damage to its business, reputation and goodwill.”
CCI holds two U.S. trademarks for the mark CORAL CASTLE, and claims common law trademark rights in the marks CORAL CASTLE and CORAL CASTLE MUSEUM EST. 1923 ~ MIAMI, FL.
The Coral Castle is a limestone structure in Florida that features an impressive layout of massive stones. Coral Castle is said to have been constructed from the early 1920s through 1951by “an eccentric Latvian-American named Edward Leedskalnin” (Leedskalnin worked on the project until he passed away in 1951). It is located on the South Dixie Highway in Miami, and while it first operated as a tourist attraction from 1923, it currently operates as a museum.
CCI also stated in its complaint that Coral Castle is “noted for legends surrounding its creation,” and that the structure is often referred to as “Florida’s Stonehenge,” due to its “mysterious and mythical background.”
In the latest season of Fortnite (which launched the current version on June 17), Epic Games added a virtual Coral Castle, which is a stone structure that might have been intended to replicate the mythical island nation of Atlantis. This makes sense, as a lot of the imagery and promotion for the current season is centered on the DC Comics character “Aquaman,” who was portrayed by Jason Momoa in the 2018 movie of the same name. CCI even acknowledges this in its complaint. It is well noted that DC Comics has heavily associated the character of Aquaman with the aquatic city of Atlantis. The current Fortnite season, which is referred to in the complaint as chapter 2, season 3, features a host of aquatic themed locales, with new locations being revealed as time passes.
CCI claims that by referring to the virtual location as Coral Castle instead of ‘Atlantis,’ EGI willfully violated CCI’s rights in the ‘Coral Castle’ mark. They also allege that by using the CORAL CASTLE mark without CCI’s consent, they have impliedly represented that CCI consented to EGI’s use of the mark in Fortnite, thereby “intentionally causing the erroneous public association between Fortnite: Battle Royale and [CCI], and creating the false impression that [CCI] has endorsed Fortnite: Battle Royale.” They even further claim that no other locations on Fortnite’s current map have the same name as other real world famous landmark like Coral Castle does, and that Fortnite’s Virtual Coral Castle shares common themes with the real Coral Castle, in that both places “include nautical/beach motifs, castle structures, partial castle walls, and stone objects,” and both places “also evoke the feeling of a centuries old mysterious place.”
CCI makes quite the interesting argument that “Consumers are likely to purchase video games and video game services from [EGI] believing that [EGI] is affiliated, connected or associated with [CCI], resulting in a loss of goodwill to [CCI].” So CCI is essentially saying that people who purchased the current season of Fortnite believed that CCI is affiliated with EGI when they made that purchase, and that hurts CCI’s goodwill in the mark CORAL CASTLE.
CCI, along with asking for a jury trial, is petitioning the court for a laundry list of remedies, including:
- A preliminary injunction
- Actual damages for each completed act of trademark infringement;
- EGI’s profits from such infringement;
- Treble damages and increased profits;
- compensatory damages;
- Gains, profits and advantages that EGI obtained “as a result of its wrongful acts”;
- A judgment requiring EGI to offer up for destruction: “all articles, displays, advertisements, labels, signs, prints, packages, packaging, wrappers, receptacles, brochures, catalogs, plates, molds, uniforms, and logo items in its possession or control which display a product which is identical to, or confusingly similar with” the mark CORAL CASTLE;
- A judgment requiring EGI to file with the Court, and to serve upon CCI’s lawyers, within thirty days after an injunction or order was issued, a written report detailing the manner in which it has complied with the injunction / order;
- A judgment requiring EGI to compensate CCI for the advertising or other expenses made in order to dispel any confusion caused by EGI’s infringement, unfair competition and other unlawful acts;
- A permanent injunction, and;
- Interest, attorneys’ fees, and other costs in bringing this lawsuit.
However, CCI does not ever give a dollar amount for how much money they’re asking for as a remedy for any particular act that they believe is wrongful. The reason? They claim that:
“It would be difficult to ascertain the amount of compensation that could afford Plaintiff adequate relief for such continuing acts. Plaintiff’s remedy at law is not adequate to compensate it for the threatened injuries. Monetary relief alone is not adequate to address fully the irreparable injury that Defendant’s illegal actions have caused.”
The case name is Coral Castle, Inc. v. Epic Games, Inc., and was filed in the U.S. District Court for the Southern District of Florida, Miami Division. The case number is 1:20-cv-23381. You can check out the complaint filed by Coral Castle here.