Fortnite's Trademark Filing Royale

Fortnite is a veritable gold mine of potential trademark filings, so it's interesting to see which marks Epic Games is acquiring IP rights on.

When it comes to consumer interest, it is hard to beat video games as an area where consumers — particularly under-40 ones — are paying attention. Anyone who enjoys video games as a welcome diversion from the serious business of life understands the importance of video games in contemporary culture. Think about younger people you know. Between mobile and console gaming, it seems that today’s teenagers are in front of screens more than ever. Parents of teenagers likely find themselves in an never-ending battle with video games in terms of getting their kids’ attention. Yes, these kids probably all have fantastic hand-eye coordination, but many parents would prefer that their kids would give as much attention to their schooling as they do to the video game du jour.

At this point, there is little doubt what the games of the moment are. Both “Fortnite” and “PUBG” have quickly garnered the attention of millions of players. (I am more familiar with Fortnite than PUBG, since it is my children’s game of choice, though I do admit to dabbling in it myself. Trust me, it can be addictive.) What they have in common is the central Hunger Games-type challenge of outlasting many other players or teams to survive and win. Recent trademark filings by Fortnite’s owner provide an informative illustration of how companies faced with a welcome increase in customer attention look to capitalize on their suddenly more valuable IP.  

In order to understand how Fortnite’s creator, Epic Games, has decided to pursue additional IP recently, it helps to know a little bit more about the game. Fortnite has a number of modes, where players can play alone (against up to 99 others selected randomly from people wishing to play at same time), or in teams of two or four (against other teams adding up to the same total of 99 other players in any one game). Players are flown over a fictional island, dotted with towns and other potential landing spots, and choose where to land by parachuting down. Everyone starts off with just an ax, which is used to accumulate resources like wood and metal that will be used to build the forts referenced in the game’s title. While harvesting resources, players are also looking to collect weapons and other items, so that they can both defend themselves and attack the other players so they can win by being the last surviving player or team. As time goes by, the playable map is shrunk via a converging “storm,” forcing surviving players into ever-closer proximity, usually culminating in a hilltop battle between the final handful of players. The action is fast-paced, and the ability to join up with friends or random strangers makes the game a social activity. I frequently see my sons playing with friends, with a group phone call going on as they play the game.

Because every game is different, and the game’s increasing popularity ensures a different experience every time, Fortnite has seen exponential growth and interest from players of all stripes. There was at least one recent media report about a distraught mother seeking an injunction against Fortnite, on the grounds its addictive properties have completely ensnared her 10-year-old son. While these types of media reports can be both humorous and cause for reflection, they are also illustrative of the commercial prospects that a hit video game can generate. And because attention is fickle — particularly among a younger audience — content creators often have a limited window of time to exploit a hit product to its fullest.

With that in mind, it was not surprising to me that Epic Games is apparently ramping up its efforts to capitalize on Fortnite’s popularity. My first thought was to check on what Fortnite merchandise is already on the market. Most of what is available is already on Amazon, at least for those products being offered by Epic Games, as opposed to fan-created one off items. So if someone really needs a Fortnite hoodie, it shouldn’t be too hard to get one. At the same time, Epic clearly intends to expand the universe of Fortnite merchandise. The evidence? A number of intent-to-use trademark filings in early February by Epic indicates that the company intends to extend its IP rights to cover more classes of products with respect to its core Fortnite mark. Additionally, Epic filed for intent-to-use marks on at least two popular aspects of the game, again across multiple potential classes of goods. Taken as a whole, it is clear that the company has given thought to using its IP filings as a mechanism for protecting its anticipated release of more Fortnite-related products.

It is also interesting to see what Epic chose to seek trademarks on, and what they have chosen to forego for now. For example, the company has apparently chosen not to seek trademarks on the term BATTLE ROYALE, even though that is the name of the game mode that has driven Fortnite’s recent popularity. Obviously, that term is not very distinctive, and the odds of success in getting a registered mark on that term in the context of a game are probably low. In contrast, Epic did choose to file for the more distinctive term VICTORY ROYALE, which flashes across the screen for the winner of any given game. Similarly, Epic did not file for the arguably generic game item called a SHIELD PORTION, but did file for the more distinctive version of a shield potion that the game calls SLURP JUICE. It is clear, therefore, that Epic has decided to focus its initial allocation of IP resources to expanding protection over its core mark, followed by taking steps to protect distinctive popular game-associated terms. Hard to argue with that reasoned strategy.

Because Fortnite, like any piece of hit content, is a veritable gold mine of potential trademark filings, it is always interesting to consider the factors companies weigh when deciding to actually spend money on applying for and acquiring IP rights. There is no doubt that Epic could file many more trademarks on different elements of Fortnite, but at the same time, it is important for Epic (and any other company) to consider whether it makes sense to file for those marks before a final decision is made to commercialize products and services around those marks. As in Fortnite itself, companies that make smart IP decisions are those most likely to find themselves celebrating outlasting the competition.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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