- Ryder Ripps lost his bid to have the Yuga Labs trademark lawsuit against him and Jeremy Cahen quickly dismissed under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law.
- The district court in California also rejected Ripps’ motion to dismiss the lawsuit, except with respect to Yuga Labs’ unjust enrichment claim, which Yuga withdrew.
- Judge John F. Walter of the Central District of California rejected all of Ripps’ arguments, in an order that took a very skeptical view of Ripps’ arguments, along with his alleged uses of Bored Ape trademarks and images in selling RR/BAYC NFTs.
Court holds Ripps’ use of Bored Apes TMs has no artistic relevance, is explicitly misleading, and is not protected under the Rogers test
- Judge Walter made three important rulings in rejecting Ripps’ defense based on the Roger test, which allows certain artistic uses of someone else’s trademarks unless [1]the use has no artistic relevance to the underlying work whatsoever, and [2] if it has some artistic relevance, unless the use explicitly misleads as to the source or the content of the work.
- (1) Ripps’ use of Bored Ape trademarks in selling RR/BAYC NFTs had no artistic relevance: “the RR/BAYC NFTs do not express an idea or point of view, but, instead, merely ‘point to the same online digital images associated with the BAYC collection.'” Indeed, such use was merely “’pretextual expressive work meant only to disguise a business profiting from another’s trademark,’” which is precisely what Plaintiff has alleged Defendants are doing in this case.”
- (2) Even if there was artistic relevance in Ripps’ use of Bored Apes, the court found the use was explicitly misleading as to source: “Defendants used Plaintiff’s BAYC Marks to make their competing product looked identical to Plaintiff’s product and ensure that the consumer was explicitly misled in the token tracker, which is the place where a consumer should be able to authenticate and verify who created the NFT.”
- (3) Ripps’ use was not a nominative fair use.
Court holds that Ripps’ anti-SLAPP motion fails because Yuga’s trademark lawsuit does not “arise out of Defendants’ attempts to publicize and criticize Plaintiff’s purported use of racist, neo-Nazi, or alt-right dog whistles”
- Judge Walter basically viewed Yuga’s complaint as a trademark lawsuit; Yuga didn’t assert a claim for defamation, slander, or libel. “As Plaintiff makes clear in its Complaint and its Opposition, its claims are limited to Defendants’ heavily commercial use of the BAYC Marks to sell the same product – NFTs – with the same image (Defendants admit that the RR/BAYC NFTs use pointers to the same ape cartoon images as the BAYC collection) to the same customers in the same markets as Plaintiff.”
*COI disclosure: I currently own NFTs by Yuga Labs, but not from the Bored Ape Yacht Club.