Llama Design Mark Fails To Function As A Trademark For Video Game Software, Says TTAB

The Board affirmed a refusal to register the design mark shown below for "downloadable video game software" on the ground that it fails to function as a trademark under Llanham Act Sections 1, 2, and 45. The mark comprises "a fanciful cartoonish image of a llama with the design of a treasure chest on the side portion of its saddle." The Board agreed with Examining Attorney Lleslie I. Richards that Applicant Epics's only specimen did not show use of the design as a source indicator. In re Epic Games, Inc., Serial No. 88233723 (May 26, 2021) [not precedential] (Opinion by Judge Albert Zervas). 

According to Epic, it introduced the llama item into its Fortnite video game in March 2018. The llama item is known to players, streamers, and fans as the "Loot Llama," "Supply Llama," or just "the Llama." In game play, the Llama item serves a function familiar to many players (e.g., a resource cache), but is portrayed in a unique and unusual way. A player opens the llama