Epic Game’s Loot Llama Refused Trademark

In re Epic Games, Inc.

Image of Mark in App. No. 88/233,723

On May 26, 2021, the Trademark Trial and Appeal Board (“TTAB”) affirmed the refusal to register Epic Games, Inc’s (“Epic”) design trademark application for its Loot Llama design (the “Llama Mark”).

Epic applied to register the Llama Mark in December of 2018. As shown above, the Llama Mark consists of “a fanciful cartoonish image of a llama with the design of a treasure chest on the side portion of its saddle.” The application covered International Class 9 for “video game software” (as amended – the original goods description included cell phone stands as well), and International Class 41 for “entertainment services, namely, providing online video games.” The Llama Mark image has been featured in Epic’s game, Fortnite, as a loot-giving llama since March 2018.

The application was initially rejected because, according to the USPTO examiner, (1) the Llama Mark merely identifies a character in Epic’s game; (2) Epic’s use of the Llama Mark is ornamental; (3) the specimen did not show use in commerce in class 41; and (4) the specimen did not show the same mark that was in the application.

After several subsequent office actions and responses, the application was appealed to the TTAB. The ornamental refusal was withdrawn and Epic amended its class 41 services from an in-use to an intent-to-use, meaning specimens for the class 41 application were no longer required. Because the class 41 entertainment services were amended to intent-to-use, the initial rejection was limited to class 9 alone, and the remaining issue for the TTAB was whether the Llama Mark (as shown in the specimens) functions as a trademark in class 9, or whether instead the Llama Mark merely identifies a game character.

Throughout prosecution of the Llama Mark, Epic disagreed that the Llama Mark was merely a character because the Loot Llama that is the basis of the Mark has no personality or movement. Epic cited numerous dictionary definitions of the term ‘character’ in an attempt to prove the Loot Llama is not a character. In its request for reconsideration, Epic argued that even if the Loot Llama is a character, it has acquired a secondary meaning to consumers that identifies the source of Epic’s games sufficiently to warrant trademark registration.

The USPTO examiner argued that Epic was not using the Llama Mark as a trademark, and said that if the Llama Mark fails to function as a source indicator, no amount of acquired secondary meaning is sufficient to grant trademark rights to Epic.

Epic appealed to the TTAB, where its additional evidence was not sufficient to persuade the Board that the Llama Mark as shown in its specimen functions as a trademark.

Epic’s below specimen, a screenshot of their V3.3 patch notes page with the Llama Mark several times across the top banner, was not persuasive to the TTAB because the use of the mark several times undermined the argument that a single Llama Mark would identify Epic as a source to consumers. Further, the juxtaposition on the banner to the word “Fortnite” indicated to the TTAB that the Llama was not what distinguished the game.

The TTAB also found the below screenshot from supporting testimony unpersuasive because it was not the applied for design; the saddle was different. The description of the mark Epic applied for stated that the “mark consists of a fanciful cartoonish image of a llama with the design of a treasure chest on the side portion of its saddle.” (emphasis added).

Finally, the TTAB found screenshots of the game loading screen featuring the Llama Mark unpersuasive because use of the mark inside the game would not indicate the source. Lastly, the lack of a use of “TM” showed no attempt on Epic’s part to claim trademark rights.

Based on all of the specimens and evidence Epic presented, the TTAB found that the Llama Mark did not function as a source indicator, as a trademark would. The TTAB agreed with the Examining Attorney and affirmed rejection of the Llama Mark in class 9.

Epic’s Llama Mark was not rejected in class 41 as discussed above. Epic may appeal or try its class 9 application again with new specimens, or as an intent-to-use application instead.