throbber
Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
`
`CASE No.
`
`1:20-cv-23381
`
`CORAL CASTLE, INC.
`
`Plaintiff
`
`
`
`v.
`
`EPIC GAMES, INC.
`
`Defendant
`
`______________________________
`
`COMPLAINT
`
`Plaintiff Coral Castle, Inc. (“CCI” or “Plaintiff”), by and through undersigned counsel,
`
`files this Complaint (“Complaint”), and avers and asserts the following claims against Defendant
`
`Epic Games, Inc. (“EGI”):
`
`INTRODUCTION
`
`1.
`
`The case is about Fortnite, one of the most popular and best-selling video games
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`of all time. EGI released Fortnite in or around September 2017. Since that time, the game has
`
`had sales exceeding $1,000,000,000.00 (1 Billion Dollars).
`
`2.
`
`One mode of the game is called Fortnite: Battle Royale, where one hundred (100)
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`players attempt to survive in a virtual world made up of various cities, towns and landmarks
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`(each a “Location,” collectively the “Locations”).
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`3.
`
`The virtual world of Fortnite is continually changing, with Locations being added
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`(and removed) on a regular basis.
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`4.
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`In some cases these Locations have names coined by EGI, like “Dusty Divot,”
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`“Loot Lake” or “Tilted Towers”. In other cases, Locations have the names of fictional places
`
`from popular culture, like “Gotham City” and “Westworld.”
`
`5.
`
`On or about August 1, 2020, EGI changed the virtual world of Fortnite: Battle
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`Royale to add a Location called “Coral Castle,” and that is where the issue lies.
`
`THE PARTIES
`
`6.
`
`Plaintiff CCI is a Florida Corporation with its principal place of business located
`
`at 28655 South Dixie Highway, Miami, Florida 33033.
`
`7.
`
`Defendant EGI is a North Carolina Corporation with its principal place of
`
`business at 620 Crossroads Boulevard, Cary, North Carolina 27518.
`
`JURISDICTION AND VENUE
`
`8.
`
`Through this Complaint, Plaintiff asserts claims against Defendant that arise
`
`under the Lanham Act of 1946, as amended, 15 U.S.C. § 1051, et seq., Florida Common Law,
`
`and Florida Statutory Law.
`
`9.
`
`This Court has subject matter jurisdiction over Plaintiff’s federal claims pursuant
`
`to 28 U.S.C. §§ 1331 and 1338(a) (federal question; trademarks), as well as 28 U.S.C. § 1332
`
`(diversity).
`
`10.
`
`The Court has subject matter jurisdiction over Plaintiffs’ pendant state law claims
`
`under 28 U.S.C. § 1367(a) because the state law claims arise out of a common nucleus of
`
`operative facts as the federal law claims.
`
`11.
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`Venue is also proper in this District and Division under 28 U.S.C. §§ 1391(b) and
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`1400(a) because EGI’s activities have caused substantial damage to CCI in this District and
`
`Division, and because EGI may be found in this District and Division.
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`Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 3 of 27
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`FACTUAL BACKGROUND
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`THE ‘REAL’ CORAL CASTLE
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`12.
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`Coral Castle is a limestone structure created by an eccentric Latvian-American
`
`named Edward Leedskalnin (1887–1951). It is located in unincorporated territory of Miami-
`
`Dade County, Florida, between the cities of Homestead and Leisure City. The structure
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`comprises numerous megalithic stones, mostly limestone formed from coral, each weighing
`
`several tons.
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`13.
`
`Leedskalnin started work on what would become Coral Castle in the early 1920s.
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`He moved the structure at least once during construction, but it has been in its present location
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`since 1936. Leedskalnin continued to work on the structure until his death in 1951. Leedskalnin
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`operated Coral Castle as a tourist attraction from 1923 on, charging ten (10) cents admission per
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`person at first.
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`14.
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`Leedskalnin’s originally named the structure “Rock Gate.” After his death (in
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`1951), Leedskalnin’s family sold the property, and the new owners renamed it “Coral Castle.” It
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`continued to operate as a tourist attraction under the new ownership.
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`15.
`
`Coral Castle is currently a privately-operated tourist attraction, owned and
`
`operated by Plaintiff CCI.
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`16.
`
`Coral Castle is noted for legends surrounding its creation. Some claim it was
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`built single-handedly by Leedskalnin using reverse magnetism or supernatural abilities to move
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`and carve numerous stones, each weighing many tons. Due to its mysterious and mythical
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`background, Coral Castle is often referred to as “Florida’s Stonehenge.”
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`17.
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`Shown below are various images of Coral Castle:
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`
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`Coral Castle is a world famous and well-known destination and tourist attraction.
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`Coral Castle is listed on the National Register of Historic Places.
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`4
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`18.
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`19.
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`20.
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`Coral Castle has been featured in various films, including: (1) The Wild Women of
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`Wongo (1958), (2) Nude on the Moon (1961), and (3) Jimmy, the Boy Wonder (1966).
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`21.
`
`Coral Castle was also featured on an episode of Leonard Nimoy’s television
`
`program In Search of... (1976–1982), entitled “The Castle of Secrets,” and on the History
`
`Channel series Ancient Aliens (Season 8, Episode 2(2014)).
`
`22.
`
`TripAdvisor ranked Coral Castle as one of the Top 35 museums in the United
`
`States (out of over 35,000). Coral Castle has hosted thousands of visitors per year, including
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`several national and local celebrities. In 2019, Coral Castle was named one of “The 40 Most
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`Mysterious Places in the Whole Entire World” along with places like Area 51 and The Bermuda
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`Triangle. Coral Castle’s Facebook Page has over 69,000 Followers, and over 42,000 “Check-
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`Ins” for the location. Billy Idol’s song 1987 “Sweet Sixteen” is about Leedskalnin’s building of
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`the structure, and his video for the song was filmed there. See Ex. C.
`
`PLAINTIFF’S TRADEMARKS
`
`23.
`
`Plaintiff CCI holds two (2) U.S. Trademark Registrations related to Coral Castle.
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`U.S. Reg. No. 5,057,446 for the mark CORAL CASTLE (the “’446 Registration”) was issued on
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`October 11, 2016 and covers services such as “On-line retail store services featuring hats, shirts,
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`books, DVDs, replicas of museum attractions, collectible spoons, thimbles, lapel pins, tie tacks,
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`mints, Christmas ornaments, souvenir patches, shot glasses, bumper stickers, toys, mugs, plates,
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`cups, souvenir tins sold empty, magnets” (in Class 35) and “Museum services” (in Class 41).
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`U.S. Reg. No. 5,057, 447 for the logo mark CORAL CASTLE MUSEUM EST. 1923 ~ MIAMI,
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`FL (And Design) (the “’447 Registration”) was issued on October 11, 2016 and covers services
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`such as “Museum services” (in Class 41). See Ex. A.
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`24.
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`Plaintiff also owns common law rights in the marks CORAL CASTLE and
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`CORAL CASTLE MUSEUM EST. 1923 ~ MIAMI, FL (And Design) (collectively, the
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`“Trademarks”), based on over forty (40) years of continuous and exclusive use.
`
`25.
`
`The ‘447 Registration is for the logo shown below, which includes pictorial
`
`representations of a castle, a crown, seahorses and a scallop shell. See Ex. A, ‘447 Reg., Mark
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`Description (“The mark consists of a castle with a seahorse on either side facing inward on a
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`medallion with a crown at the top and leaf designs at either side of the crown, and a scallop shell
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`with leaf designs on either side at the bottom of the medallion…”).
`
`
`FORTNITE: BATTLE ROYALE
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`
`
`26.
`
`Fortnite has many different gameplay modes. In the mode called Fortnite: Battle
`
`Royale, one hundred (100) players fight for survival throughout multiple Locations on a virtual
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`island.
`
`27.
`
`28.
`
`EGI released the initial version of Fortnite: Battle Royale as a paid game.
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`However, by September 2017, due in part to the success of a competing game
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`called PlayerUnknown’s Battlegrounds (“PUBG”), EGI re-released Fortnite: Battle Royale as a
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`‘free-to-play’ game.
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`29.
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`As a free-to-play video game, EGI allows players to download and play Fortnite:
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`Battle Royale for free. The game is supported primarily by purchases made within an electronic
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`storefront for virtual use in the game.
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`30.
`
`For example, players can make in-game purchases of currency, called “V-Bucks.”
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`The players, in turn, use V-Bucks to purchase customizations for their in-game avatars, including
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`new characters, vehicles, weapons, clothes and “emotes.”
`
`31.
`
`EGI also sells “Battle Passes” that allow the player to unlock unique characters,
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`vehicles, weapons, clothes and “emotes.”
`
`32.
`
`EGI presently offers four (4) pricing levels for V-Bucks: (1) 1,000 V-Bucks for
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`$9.99; (2) 2,500 (+300 Bonus) V-Bucks for $24.99; (3) 6,000 (+1,500 Bonus) V-Bucks for
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`$59.99; and (4) 10,000 (+3,500 Bonus) V-Bucks for $99.99.
`
`33.
`
`34.
`
`“Battle Passes” typically cost 950 V-Bucks (a little under $10.00).
`
`In November 2018, Bloomberg announced that Fortnite had 200 Million player
`
`accounts across all platforms. Fortnite’s popularity has translated into record sales for EGI.
`
`Analysts have estimated that since its release, Fortnite has generated between $1 billion to $2
`
`billion in revenue, mainly through in-game purchases.
`
`35.
`
`In May 2018, Fortnite broke its own record by generating approximately $318
`
`Million in revenue, the biggest month ever for a video game. In fact, nearly 80 Million people
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`played Fortnite in August 2018.
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`CHAPTER 2, SEASON 3
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`36.
`
`Fortnite: Battle Royale has various ‘Chapters’ and ‘Seasons’ that change over
`
`time. As of August 1, 2020, the Fortnite: Battle Royale experience was being referenced as
`
`“Chapter 2, Season 3”.
`
`37.
`
`Chapter 2, Season 1 of Fortnite: Battle Royale began in October 2019. Chapter 2,
`
`Season 2 began in in February 2020. The current version (Chapter 2, Season 3) launched on
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`June 17, 2020.
`
`38.
`
`The virtual world of Chapter 2, Season 3 is primarily water-based, with new
`
`locations revealed as time passes and the water recedes (“As time goes on and water recedes,
`
`even more locations will be uncovered.”). See https://www.epicgames.com/fortnite/en-
`
`US/chapter-2-season-3.
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`39.
`
`The Fortnite: Battle Royale map typically has between ten (10) and twenty (20)
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`Locations at any one time. Below is an image from a current (August 1, 2020) version of the
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`Fortnite: Battle Royale map (Chapter 2, Season 3).
`
`
`In addition to “Coral Castle,” Locations on this map include “Sweaty Sands,”
`
`
`
`40.
`
`“Dirty Docks,” “Catty Corner” and “Misty Meadows.” No other locations on the current map
`
`have the same as famous landmarks (like Coral Castle).
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`THE ‘VIRTUAL’ CORAL CASTLE
`
`41.
`
`The ‘virtual’ “Coral Castle” (hereinafter “VCC”) is a Location in the upper left-
`
`hand corner of the above-referenced map.
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`42.
`
`The map was altered by EGI at some point on August 1, 2020 to reveal VCC for
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`the first time.
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`43.
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`A Fortnite news site released the Tweet below on August 1, 2020 at 1:10 am,
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`which shows VCC:
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`44.
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`In the game, VCC appears as a beach area, including islands, sandbars and water
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`features. VCC also includes various castles, castle walls, stone objects and statutes. Below is a
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`promotional image of VCC published by EGI:
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`45.
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`Additional gameplay images of VCC from Chapter 2, Season 3 are shown below:
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`46.
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`As shown above, VCC shares common themes with the real Coral Castle. Both
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`include nautical/beach motifs, castle structures, partial castle walls, and stone objects. Both also
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`evoke the feeling of a centuries old mysterious place.
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`47.
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`The real Coral Castle markets and advertises using nautical/beach motifs and
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`castle structures to promote the location and their museum services. As noted above, Plaintiff’s
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`‘447 Registration for its logo includes both nautical and castle elements.
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`48.
`
`Upon information and belief, and according to promotions surrounding the
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`release, VCC may have been intended by EGI to be a representation of a modern day Atlantis.
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`See Ex. B. (“Fortnite Reveals Coral Castle, And It’s A Tiny Atlantis,” GameSpot, August 8,
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`2020; “'Fortnite' Map Update Adds Coral Castle, But Don't Call It Atlantis,” NewsGeek, August
`
`1, 2020).
`
`49.
`
`In fact, the whole theme of “Chapter 2, Season 3” of Fortnite: Battle Royale is
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`geared around the DC Comics character “Aquaman,” as portrayed by Jason Momoa in the 2018
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`movie of the same name. A promotional image showing the Momoa incarnation of Aquaman as
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`a playable character in Fortnite: Battle Royale is shown below:
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`
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`50.
`
`In the movie, and in the comic books, Aquaman’s home under the ocean is called
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`
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`“Atlantis.”
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`51.
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`Upon information and belief, rather than call this new location “Atlantis,” EGI
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`intentionally chose to call it “Coral Castle,” in clear and willful violation of Plaintiff’s rights in
`
`the Trademarks.
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`52.
`
`EGI is utilizing the vast goodwill associated with the Trademarks to promote the
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`nautical theme of Chapter 2 Season 3 of Fortnite: Battle Royale, and to promote sales of V-
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`Bucks and Battle Passes, without the consent or approval of CCI, and without compensation to
`
`CCI.
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`COUNT I
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`[TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1114]
`
`53.
`
`54.
`
`Plaintiff repeats and re-alleges Paragraphs 1 through 52 as if fully set forth herein.
`
`Plaintiff is the owner of the ‘446 Registration for the mark CORAL CASTLE and
`
`the ‘447 Registration for the mark CORAL CASTLE MUSEUM EST. 1923 ~ MIAMI, FL (And
`
`Design) (collectively, the “Trademarks”).
`
`55.
`
`56.
`
`The ‘446 and ‘447 Registrations are valid and subsisting.
`
`The Trademarks are inherently distinctive as used in connection with museum
`
`services and related retail services.
`
`57.
`
`Plaintiff has developed and maintained substantial secondary meaning in the
`
`Trademarks as used in connection with museum services and related retail services.
`
`58.
`
`Defendant, without Plaintiff’s consent, has used reproductions, counterfeits,
`
`copies and/or colorable imitations of the Trademarks in commerce or in connection with the sale,
`
`offering for sale, distribution and/or advertising of Defendant’s goods and services, and such use
`
`is likely to cause confusion, to cause mistake, and/or to deceive.
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`59.
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`Defendant’s use of the mark “Coral Castle” as a Location in Fortnite: Battle
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`Royale is likely to cause confusion, mistake or to deceive the public as to the affiliation,
`
`connection or association of Defendant and its goods and services with Plaintiff.
`
`60.
`
`The likelihood of confusion is only exacerbated by the fact that Fortnite: Battle
`
`Royale and the real Coral Castle share common marketing and advertising themes, such as
`
`castles and nautical elements. Specifically, due to these common themes, purchasers are more
`
`likely to believe that the “Coral Castle” Location in Fortnite: Battle Royale is authorized,
`
`approved and/or sponsored by Plaintiff.
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`61.
`
`Defendant has used the Trademarks to generate significant income by selling,
`
`inter alia, V-Bucks and Battle Passes for Chapter 2, Season 3 of Fortnite: Battle Royale, using
`
`the fame of Plaintiff’s Trademarks to stay relevant to current players, and to incentivize those
`
`players to continue playing Fortnite: Battle Royale, impliedly representing that Plaintiff
`
`consented to Defendant’s use of the Trademarks, intentionally causing the erroneous public
`
`association between Fortnite: Battle Royale and Plaintiff, and creating the false impression that
`
`Plaintiff has endorsed Fortnite: Battle Royale.
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`62.
`
`By reason of Defendant’s acts alleged herein, Plaintiff has suffered and will suffer
`
`damage to its business, reputation and goodwill. Additionally, Plaintiff has suffered and will
`
`suffer the loss of sales and profits that it would have made but for Defendant’s acts.
`
`63.
`
`Defendant’s conduct constitutes willful trademark infringement pursuant to 15
`
`U.S.C. § 1114(1). Defendant’s conduct was intended to cause confusion, has caused confusion,
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`and will continue to cause confusion unless enjoined.
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`64.
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`For each completed act of trademark infringement, Plaintiff is entitled to recover
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`its actual damages as well as Defendant’s profits from such infringement.
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`65.
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`Defendant continues to do the acts complained of herein, and unless restrained
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`and enjoined will continue to do so, all to Plaintiff’s irreparable damage. It would be difficult to
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`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 and will continue to cause Plaintiff if not enjoined.
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`WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
`
`damages, interest, attorneys’ fees, costs, and such further relief as the Court deems proper.
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`COUNT II
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`[TRADEMARK DILUTION UNDER 15 U.S.C. § 1125(C)]
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`Plaintiff repeats and re-allege paragraphs 1-52 as if fully set forth herein.
`
`By virtue of the popularity and renown of Coral Castle, the Trademarks have
`
`66.
`
`67.
`
`become distinctive and famous within the meaning of 15 U.S.C. § 1125(c).
`
`68.
`
`Defendant’s conduct dilutes the distinctive quality of the Trademarks in violation
`
`of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).
`
`69.
`
`Defendant’s conduct and actions have lessened the capacity of the Trademarks to
`
`function as indicators of source, constituting dilution by blurring.
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`70.
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`Defendant did not credit Plaintiff, or seek their consent, for the inclusion of the
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`Location “Coral Castle” within Fortnite: Battle Royale.
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`71.
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`Defendant’s acts have been deliberate, willful, intentional, and purposeful to
`
`exploit Plaintiff’s rights in the Trademarks for their own personal gain.
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`72.
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`Defendant continues to advertise, promote, market, sell and offer for sale V-
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`Bucks and Battle Passes for Chapter 2, Season 3 of Fortnite: Battle Royale including the
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`Location “Coral Castle,” and unless restrained and enjoined, will continue to do so to Plaintiff’s
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`irreparable damage.
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`73.
`
`Defendant’s conduct is causing and, unless enjoined and restrained by this Court,
`
`will continue to cause Plaintiff great and irreparable injury that cannot be compensated or
`
`measured in money. Plaintiff thus has no adequate remedy at law and is entitled to injunctive
`
`relief, prohibiting further dilution of the Trademarks.
`
`74.
`
`Because of the willful nature of Defendant’s wrongful acts, Plaintiff is entitled to
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`an award of treble damages and increased profits pursuant to 15 U.S.C. § 1117.
`
`75.
`
`Plaintiff is also entitled to recover its attorneys’ fees and costs of suit pursuant to
`
`15 U.S.C. § 1117.
`
`WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
`
`damages, interest, costs, and such further relief as the Court deems proper.
`
`COUNT III
`
`[UNFAIR COMPETITION UNDER 15 U.S.C. § 1125(A)]
`
`Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
`
`Plaintiff is the owner of the ‘446 and ‘447 Registrations, as well as owner of all
`
`76.
`
`77.
`
`common law rights in and to the Trademarks.
`
`78.
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`The Trademarks are inherently distinctive as used in connection with museum
`
`services and related retail services.
`
`79.
`
`Plaintiff has developed and maintained substantial secondary meaning in the
`
`Trademarks as used in connection with museum services and related retail services.
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`80.
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`Defendant, without Plaintiff’s consent, has used reproductions, counterfeits,
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`copies and/or colorable imitations of the Trademarks in commerce or in connection with the sale,
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`offering for sale, distribution and/or advertising of Defendant’s goods and services, and such use
`
`is likely to cause confusion, to cause mistake, and/or to deceive.
`
`81.
`
`Defendant’s use of the mark “Coral Castle” as a Location in Fortnite: Battle
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`Royale is likely to cause confusion, mistake or to deceive the public as to the affiliation,
`
`connection or association of Defendant and its goods and services with Plaintiff.
`
`82.
`
`The likelihood of confusion is only exacerbated by the fact that Fortnite: Battle
`
`Royale and the real Coral Castle share common marketing and advertising themes, such as
`
`castles and nautical elements. Specifically, due to these common themes, purchasers are more
`
`likely to believe that the “Coral Castle” Location in Fortnite: Battle Royale is authorized,
`
`approved and/or sponsored by Plaintiff.
`
`83.
`
`Defendant has used the Trademarks to generate significant income by selling,
`
`inter alia, V-Bucks and Battle Passes for Chapter 2, Season 3 of Fortnite: Battle Royale, using
`
`the fame of Plaintiff’s Trademarks to stay relevant to current players, and to incentivize those
`
`players to continue playing Fortnite: Battle Royale, impliedly representing that Plaintiff
`
`consented to Defendant’s use of the Trademarks, intentionally causing the erroneous public
`
`association between Fortnite: Battle Royale and Plaintiff, and creating the false impression that
`
`Plaintiff has endorsed Fortnite: Battle Royale.
`
`84.
`
`By reason of Defendant’s acts alleged herein, Plaintiff has suffered and will suffer
`
`damage to its business, reputation and goodwill. Additionally, Plaintiff has suffered and will
`
`suffer the loss of sales and profits that it would have made but for Defendant’s acts.
`
`85.
`
`As a direct and proximate result of Defendant’s wrongful acts, Plaintiff has
`
`suffered and continues to suffer and/or is likely to suffer damage to its trademarks, business
`
`37324261.1
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`18
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`

`

`Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 19 of 27
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`reputation and goodwill. Defendant will continue, unless restrained, to conduct its business
`
`using the infringing mark “Coral Castle,” causing irreparable damage to Plaintiff.
`
`86.
`
`Defendant’s conduct constitutes unfair competition pursuant to 15 U.S.C. §
`
`1125(a). Defendant’s conduct was intended to cause confusion, has caused confusion, and will
`
`continue to cause confusion unless enjoined.
`
`87.
`
`Plaintiff has no adequate remedy at law and is entitled to an injunction restraining
`
`Defendant and any of its officers, agents, servants, licensees, and employees, and all persons
`
`acting in concert with Defendant, from engaging in further acts of false designation of origin,
`
`affiliation or sponsorship.
`
`88.
`
`Plaintiff is further entitled to recover from Defendant the actual damages that it
`
`sustained and/or is likely to sustain as a result of Defendant’s wrongful acts. Plaintiff is unable
`
`to ascertain the full extent of the monetary damages that it has suffered and/or is likely to suffer
`
`by reason of Defendant’s acts of false designation of origin, affiliation or endorsement.
`
`89.
`
`Plaintiffs 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 and will continue to cause Plaintiff if not enjoined.
`
`90.
`
`Plaintiff is further entitled to recover from Defendant the gains, profits and
`
`advantages that Defendant has obtained as a result of its wrongful acts. Plaintiff is unable to
`
`ascertain the extent of the gains, profits, and advantages that Defendant has realized by reason of
`
`its acts of false designation of origin, affiliation or endorsement.
`
`91.
`
`Because of the willful nature of Defendant’s wrongful acts, Plaintiff is entitled to
`
`an award of treble damages and increased profits pursuant to 15 U.S.C. § 1117.
`
`37324261.1
`
`19
`
`

`

`Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 20 of 27
`
`92.
`
`Plaintiff is also entitled to recover its attorneys’ fees and costs of suit pursuant to
`
`15 U.S.C. § 1117.
`
`WHEREFORE, Plaintiff requests judgment against Defendant EGI for monetary
`
`damages, interest, costs, and such further relief as the Court deems proper.
`
`COUNT IV
`
`[UNFAIR COMPETITION UNDER FLORIDA COMMON LAW]
`
`Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
`
`Plaintiff owns and enjoys common law trademark rights in the Trademarks in the
`
`93.
`
`94.
`
`State of Florida, and throughout the United States.
`
`95.
`
`The Trademarks operate as indicators of source and/or origin, particularly when
`
`used in interstate commerce. Moreover, the Trademarks have acquired distinctiveness via
`
`secondary meaning.
`
`96.
`
`Defendant, through their use, display and copying of the Trademarks, has without
`
`authorization, in connection with their goods and/or services in commerce, made or contributed
`
`to the making of false designations of origin, false or misleading descriptions of fact, and/or false
`
`or misleading representations of fact, which are likely to cause confusion, mistake, or to deceive
`
`as to the affiliation, connection or association of Defendant with Plaintiff, and/or as to the origin,
`
`sponsorship or approval of Defendant’s goods and services in violation of the common law of
`
`the State of Florida.
`
`97.
`
`Consumers are likely to purchase video games and video game services from
`
`Defendant believing that Defendant is affiliated, connected or associated with Plaintiff, resulting
`
`in a loss of goodwill to Plaintiff.
`
`98.
`
`Defendant’s acts as set forth herein constitute unfair competition, and/or induce or
`
`contribute to acts of unfair competition.
`
`37324261.1
`
`20
`
`

`

`Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 21 of 27
`
`99.
`
`Defendant’s unfair acts have been committed in bad faith and with the intent to
`
`cause confusion, mistake and/or to deceive.
`
`100. As a direct and proximate result of Defendant’s conduct, Plaintiff has been, and is
`
`likely to be, substantially injured in its business including harm to its goodwill and reputation
`
`and the loss of revenues and profits.
`
`101. Upon information and belief, Defendant’s acts of unfair competition are, and have
`
`been, oppressive, fraudulent and malicious, thus entitling Plaintiff to punitive damages.
`
`102. Plaintiff has no adequate remedy at law because the Trademarks are unique and
`
`represent to the public Plaintiff’s identity, reputation, and goodwill, such that damages alone
`
`cannot fully compensate Plaintiff for Defendant’s misconduct.
`
`103. Unless enjoined by this Court, Defendant and those acting in concert with them
`
`will continue to infringe Plaintiff’s intellectual property rights, to Plaintiff’s irreparable injury.
`
`This threat of future injury to Plaintiff’s business identity, goodwill, and reputation requires
`
`injunctive relief to prevent Defendant’s continued use of the Trademarks, and/or marks
`
`confusingly similar thereto, and to ameliorate and mitigate Plaintiff’s injuries.
`
`104. Upon information and belief, Defendant has engaged in the above-referenced acts
`
`of unfair competition with knowledge of Plaintiff’s exclusive intellectual property rights, and
`
`Defendant will continue in such acts unless enjoined by this Court.
`
`WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
`
`damages, interest, costs, and such further relief as the Court deems proper.
`
`
`
`
`
`37324261.1
`
`21
`
`

`

`Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 22 of 27
`
`COUNT V
`
`[VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT]
`
`105. Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
`
`106. Defendant’s use of the Trademarks, or colorable imitations thereof, are deceptive
`
`and unfair practices under Florida’s Deceptive and Unfair Trade Practices Act (F.S.A. § 501.201
`
`et seq.).
`
`107. Specifically, Defendant’s use of the Trademarks, and attempt to profit from the
`
`sale of video games and video game services to third parties go against public policy and are
`
`immoral, unethical, oppressive, unscrupulous, and substantially injurious to consumers.
`
`108. As a direct result of Defendant’s deceptive and unfair practices, Plaintiff has been,
`
`and continues to be, damaged by Defendant’s use of the Trademarks, and attempts to profit from
`
`the sale of the infringing products and services.
`
`WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
`
`damages, interest, costs, and such further relief as the Court deems proper.
`
`COUNT VI
`
`[VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT]
`
`109. Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
`
`110. Plaintiff has invested substantial time, labor and money in the operation of the
`
`museum and tourist attraction called Coral Castle, and has accordingly developed substantial
`
`goodwill in connection with the Trademarks.
`
`111. Defendant has wrongfully misappropriated Plaintiff’s goodwill, and has profited
`
`from and received certain other benefits as a result of such wrongful misappropriation.
`
`112. Defendant has been unjustly enriched at Plaintiff’s expense.
`
`37324261.1
`
`22
`
`

`

`Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 23 of 27
`
`113.
`
`It would be inequitable to allow Defendant to retain the profits and other benefits
`
`it acquired through its wrongful actions.
`
`WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
`
`damages, interest, costs, and such further relief as the Court deems proper.
`
`REQUEST FOR RELIEF
`
`WHEREFORE, for the foregoing reasons, Plaintiff CCI respectfully requests that this
`
`Court enter preliminary and permanent injunctive relief against Defendant EGI, as well as its
`
`employee and/or agents, awarding the following relief:
`
`A.
`
`1.
`
`Entry of a judgment that:
`
`Defendant has infringed Plaintiff’s federal trademark rights in the Trademarks by
`
`causing a likelihood of confusion;
`
`2.
`
`Defendant’s sale of the goods and services including the Trademarks, constitutes
`
`dilution by blurring under Section 43(c) of the Lanham Act;
`
`3.
`
`Defendant’s sale of the goods and services including the Trademarks, constitutes
`
`unfair competition under Section 43(a) of the Lanham Act;
`
`4.
`
`Defendant has engaged in common law unfair competition, through the sale of
`
`goods and services using including the Trademarks, and/or goods and services related thereto;
`
`5.
`
`Defendant has engaged in deceptive and unfair trade practices in the State of
`
`Florida (under the Deceptive and Unfair Trade Practices Act), through the sale of goods and
`
`services including the Trademarks, and/or goods and services related thereto;
`
`6.
`
`Defendant has been unjustly enriched by the sale of goods and services including
`
`the Trademarks, and/or goods and services related thereto.
`
`37324261.1
`
`23
`
`

`

`Case 1:20-cv-23381-UU Document 1 Entered on FLSD Docket 08/14/2020 Page 24 of 27
`
`B.
`
`Entry of judgment that Defendant’s acts of trademark infringement and unfair
`
`competition detailed herein have been, and continue to be, willful and deliberate.
`
`C.
`
`Entry of preliminarily and permanent injunctions enjoining Defendant, th

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