Use of BAYC intellectual property by Ripps’ RR/BAYC was intended to confuse consumers, a U.S. judge in California has ruled.
A federal court in California has handed Yuga Labs, the company behind the popular Bored Ape Yacht Club (BAYC) NFT collection, a legal victory in the form of a partial summary judgment in its case against Ryder Ripps and Jeremy Cahen.
Ripps and Cahen are the duo behind the RR/BAYC non-fungible token (NFT) collection, which featured primates in similar poses to Bored Apes, and also used marketing material similar to BAYC. The two created RR/BAYC as a satirical and critical response to Yuga Labs, and have said that the BAYC NFT contains racist dog whistles, 4chan memes, as well as hidden Nazi imagery. While this narrative has resonated in certain circles of the internet, BAYC’s founders deny this entirely.
Yuga filed suit in June 2022, alleging Ripps and his associates were deliberately creating consumer confusion under the pretense of satire, generating millions in unjust profits while taking pride in the damage they caused to the BAYC with their allegations.
The U.S District Court for the Northern District of California found that Yuga Labs owns the BAYC trademarks, which are valid and enforceable, and that the defendants used the BAYC marks – referring to the images – to sell RR/BAYC NFTs without Yuga Labs’ consent and in a “manner likely to cause confusion,” with the similar product look confusing consumers intending to purchase an actual BAYC NFT or track their value with token tracking tools.
In addition, the court ruled the defendants’ use of the BAYC marks was not a case of fair use, nor an artistic expression under something called the Rogers Test, because Yuga’s BAYC marks were strong in the marketplace and the RR/BAYC project was intended to mislead.
The court also determined that the domain names registered and utilized by the defendants – rrbayc.com and apemarket.com – have the potential to create confusion, with the judge concluding the defendant’s actions are driven by a malicious intent to profit and that the two are engaging in cybersquatting.
Yuga Labs argued it should receive $200,000 in statutory damages for the cybersquatting. However, the court dismissed this claim and declared that the determination of damages would be made during a pending trial.
Ripps and Cahen also attempted to argue that because NFTs are intangible, they aren’t protected under the Lanham Act, which governs trademarks, service marks and unfair competition, providing protection against infringement and false advertising.
The judge disagreed, arguing that NFTs, as virtual goods, still qualify as goods under the Lanham Act due to their unique, traceable, and brand-associated characteristics.
In a separate case, Yuga Labs reached a settlement in February with the developer of the RR/BAYC websites and smart contracts, Thomas Lehman.
“It was never my intention to harm Yuga Labs’ brand, and I reject all disparaging statements made about Yuga Labs and its founders and appreciate their many positive contributions to the NFT space,” Lehman said at the time.
CORRECTION (APR. 24, 2023 – 18:45 UTC): Original headline incorrectly identified the suit as a copyright dispute.
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