Ryder Ripps responds to denial of motion to dismiss BAYC trademark lawsuit

Conceptual artist Ryder Ripps tweeted his response and counterclaims to the lawsuit filed against him, and fellow defendant Jeremy Cahen, over trademark infringement of the Bored Ape Yacht Club (BAYC) brand.

Ripps highlighted multiple defenses, including “1st amendment protection to unclean hands,” and a rehashing of allegations the BAYC collection is modeled on Nazi symbolism.

BAYC vs. RR/BAYC

On June 24, BAYC creators Yuga Labs filed a lawsuit against the defendants citing several allegations, including the false designation of origin, false advertising, cybersquatting, and trademark infringement.

The claims center around the RR/BAYC NFT collection, which seemingly features identical imagery to the original BAYC NFT collection. RR/BAYC was created by Ripps weeks before Yuga Labs filed the lawsuit.

At the time, Ripps said his RR/BAYC collection set about challenging notions of intellectual property as it applies to digital artwork. More so, sparking debate around  “the nature of NFT, provenance and digital ownership,” to which provenance is a defining aspect of art valuation, while also helping to derive meaning in the artistry itself.

On Dec. 16, Judge John F. Walter, of the District Court of Central California, part denied and part granted an anti-SLAPP motion to strike and motion to dismiss, initially filed by Ripps and Cahan on Oct. 3.

Judge Walter denied all aspects of the defendants’ filing, except the motion to dismiss in relation to the eighth cause of action – unjust enrichment.

The case had 11 causes of action in total, those being 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. Meaning Ripps and Cahan are still on the hook for the remaining ten causes of action.

The judge made his order based on the submission of papers without either party presenting an oral argument.

A Yuga Labs spokesperson gave CryptoSlate the following statement in response to the judge’s order:

“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.”

Ryder Ripps responds

The defendants filed a defense and counterclaims response to Judge Walter’s ruling on Dec. 27, in which they sought a jury trial.

The 55-page document went into detail on 16 specific points that support their case. They were:

• 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’s tweets also made allegations of intimidation and harassment, such as threats from a Yuga Labs agent called Guy Oseary, and the company co-founders Greg Solano and Wylie Aronow making slanderous remarks against the defendants during a podcast.

The defendants seek a dismissal of the case and counterclaim for damages due to the emotional distress and lost time, among several other requests.