Is the origin of the Bored Apes now on trial in Yuga Labs’ lawsuit against Ryder Ripps? The Bored Apes co-founders Wylie Aronow, Greg Solano to be deposed by Ryder Ripps.

If you haven’t been following the Yuga Labs’ trademark lawsuit against Ryder Ripps (which also has counterclaims brought by Ripps against Yuga Labs), you should. As Yuga Labs prepares to mint new NFTs related to “The Trial of Jimmy” in January, its co-founders Wylie Aronow and Greg Solano may be having trials of their own in the form of depositions conducted by Ryder Ripps, the person who has waged a campaign against them alleging that they “are intentionally embedding Nazi dog whistles throughout their project.” Now Ripps, through his lawyer, gets to depose them under oath.

  • On July 24, 2022, Yuga Labs sued Ryder Ripps and Jeremy Cahen for creating and selling so-called “RR/BAYC” NFTs that pointed to the same digital images as Yuga Labs’ leading NFT collection called Bored Ape Yacht Club (BAYC). Yuga Labs asserted that the defendants were infringing Yuga’s trademarks by using marks that would likely cause confusion among consumers.
  • On Dec. 16, 2022, Yuga Labs won what appeared to be a major victory when Judge John F. Walter rejected Ripps’ anti-SLAPP motion to have the case stricken under California’s law that protects speech on public issues. The court’s order rejected all of Ripps’ argument–and appeared to view Yuga’s complaint as a straightforward trademark infringement case.
  • But Ripps scored a major victory on Jan. 8, 2023, when Magistrate Judge John E. McDermott denied Yuga Labs’ motion for a protective order to prevent the depositions of the co-founders Aronow and Solano on the grounds they were apex witnesses (high-level executives of a company that has other employees who can provide the information).
  • Judge McDermott rejected Yuga Labs’ argument. Importantly, the Judge ruled:

This is a case where the two purported apex witnesses [the BAYC co-founders Aronow and Solano] are the only people who have knowledge of the creation of the marks such that exhaustion of other sources is not required.

Magistrate Judge John E. McDermott
  • That ruling appears to put at issue “the creation of the marks” involving the Bored Ape Yacht Club that Yuga Labs asserts in the lawsuit–at least some of which (e.g., the BAYC skull) Ripps claims are Nazi dog whistles (e.g, a reference to the Nazi Totenkopf).
  • During the depositions of Aronow and Solano, what may be on trial is the whole origin of the Bored Ape Yacht Club.