Ryder Ripps, a conceptual artist, tweeted his response and counterclaims to a lawsuit filed against him and another defendant, Jeremy Cahen, for trademark infringement of the Bored Ape Yacht Club (BAYC) brand.
Ripps cited several defenses, including “first amendment protection to unclean hands” and a reiteration of allegations that the BAYC collection is based on Nazi symbolism.
On June 24, the creators of BAYC, Yuga Labs, filed a lawsuit against the defendants, alleging false designation of origin, false advertising, cybersquatting, and trademark infringement.
The claims revolve around the RR/BAYC NFT collection, which appears to have the same imagery as the original BAYC NFT collection. Ripps created RR/BAYC just weeks before Yuga Labs filed the lawsuit.
Ripps stated at the time that his RR/BAYC collection aimed to challenge notions of intellectual property as they apply to digital artwork. More specifically, it has sparked debate about “the nature of NFT, provenance, and digital ownership,” where provenance is a defining aspect of art valuation while also aiding in the derivation of meaning in the artistry itself.
Judge John F. Walter of the District Court of Central California denied and granted in part an anti-SLAPP motion to strike and motion to dismiss filed by Ripps and Cahan on Oct. 3.
Except for the motion to dismiss in relation to the eighth cause of action – unjust enrichment – Judge Walter denied all aspects of the defendants’ filing.
False designation of origin, false advertising, cybersquatting, common law trademark infringement, common law unfair competition, unfair competition, false advertising, unjust enrichment, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage were among the 11 causes of action in the case. That means Ripps and Cahan are still liable for the remaining ten causes of action.
The judge issued his decision based solely on the submission of papers, with neither party presenting an oral argument.
In response to the judge’s order, a Yuga Labs spokesperson issued the following statement to CryptoSlate:
“Our lawsuit to hold Ripps and Cahen accountable for their obvious and blatant theft of Yuga Labs’ trademarks rightfully moves forward with this ruling. The court agrees that their heinous lies are unrelated to the case and do not give them carte blanche to infringe upon our marks. They intentionally misled consumers and made millions by using Yuga’s intellectual property to market and sell copycat NFTs. We will continue to prove these facts as the case progresses.”
On December 27, the defendants filed a defense and counterclaims in response to Judge Walter’s ruling, in which they requested a jury trial.
The 55-page document elaborated on 16 specific points that support their case. They were as follows:
- protection under First Amendment rights
- fair use
- BAYC imagery lacking distinctiveness
- Yuga Labs abandoning its marks
- acquiescence and/or estoppel
- unclean hands resulting from BAYC being unlawful, including classification as an unregistered security
- the applicability of a doctrine of waiver
- equitable estoppel
- plaintiff’s claims constituting unjust enrichment
- lack of justification based on RR/BAYC being conceptual and performance art
- the defendants’ rights to use “disputed property” for conceptual and performance art purposes
- the defendants’ good faith
- Yuga Labs’s failure to mitigate before legal action taken
- unfair apportionment of damages, if they exist at all
- speculative damages
Ripps’ tweets also claimed intimidation and harassment, citing threats from a Yuga Labs agent named Guy Oseary and company co-founders Greg Solano and Wylie Aronow making slanderous remarks about the defendants during a podcast.
Among other things, the defendants want the case dismissed and a counterclaim for damages for emotional distress and lost time.
