This article is slated to be published in the Dartmouth Law Journal
Jackson Lanier, The Ninth Circuit’s Split Personality: How NFTs Highlight A Concerning Split in the Court’s Application of Trademark Law to Web 3.0, Dartmouth L.J. (forthcoming 2023), https://dx.doi.org/10.2139/ssrn.4411021.
The Ninth Circuit’s Split Personality: How NFTs Highlight A Concerning Split in the Court’s Application of Trademark Law to Web 3.0
Jackson A. Lanier
The eight-factor Sleekcraft test has guided the Ninth Circuit Court of Appeal’s likelihood of confusion test for trademark infringement cases since 1979. However, a split has emerged within the Ninth Circuit; some district courts apply a standard that favors trademark prosecutors while others apply a standard that supports defendants. The facts and claims presented in the case of Yuga Labs v. Ryder Ripps provide an excellent example of how this intra-circuit split is potentially detrimental to emerging technology and individual rights. The corporate plaintiff seeks to expand the boundaries of traditional intellectual property rights to Non-Fungible Tokens (NFTs). Whereas the artist defendant seeks to push the boundary of First Amendment rights by asserting his actions were a form of digital protest. Depending on which likelihood of confusion standard the court applies, it will yield a drastically different outcome. This paper seeks to address these problems and provide methods for courts to solve them.
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For over 44 years, courts in the Ninth Circuit have looked to the Sleekcraft factors to analyze claims of copyright infringement. The Sleekcraft test is similar to that of tests utilized by other circuit courts. The problem is that Sleekcraft, like the majority of similar landmark trademark infringement cases in other circuits, were decided before the advent of the internet.
As the internet grew in popularity, ubiquity, and prevalence in the economy, trademark law and this new technology clashed. The Ninth Circuit became the epicenter of trademark lawsuits dealing with the internet due to the large concentration of internet and technology-oriented companies located within it.
However, the Ninth Circuit has struggled with how to treat the internet and how to weigh the Sleekcraft factors in the context of the internet. Over the years, the Ninth Circuit developed two conflicting standards that weighed the Sleekcraft factors drastically differently. The first standard encourages courts to rule in favor of the trademark prosecutor because it assumes that internet users are credulous and that similar trademarks on the internet are likely to confuse consumers. The second standard favors defendants by imploring courts to consider the totality of the internet and the specifics of new technology.
The flaws with this legal patchwork reveal themselves in the case Yuga Labs v. Ryder Ripps. Yuga Labs seeks to expand the boundaries of traditional intellectual property rights to Non-Fungible Tokens (NFTs). Whereas the artist defendant, Ryder Ripps, seeks to push the boundary of First Amendment rights by asserting his actions were a form of digital protest. Like with the early internet trademark cases, the issue is how the court (and future courts) should analyze NFT trademark infringement claims.
To understand what an NFT is, it is important to understand the technology that powers NFTs. NFTs live on what is called a blockchain, most commonly the Ethereum blockchain. A blockchain is “a chain of blocks of transactions of a comprehensive, secure ledger authenticated by multiple parties.” The first blockchain, Bitcoin, was launched in 2008 by a pseudonymous person or entity known as Satoshi Nakamoto. Bitcoin was designed to be a virtual currency, a way to trade money across the world and circumvent banks and governments. When a sender wishes to send Bitcoins to someone, the sender has to pay a variable fee (colloquially called “gas”) to the Bitcoin blockchain to verify that the sender has the funds and to register the transaction on the network’s ledger. Other blockchains later emerged such as Ethereum, Litecoin, Cardano, and others, that vary in their methods and features but perform the same function as Bitcoin. All of a user’s currency, NFTs, and other data on a blockchain is stored in their “wallet.” A wallet is a semi-anonymous address on the blockchain that verifies a user’s ownership of assets on the blockchain. Wallets are how users can verify the previous ownership and creator of an NFT.
“The concept of an NFT started in December 2012 with the inception of Colored Coins on the Bitcoin Blockchain.” Colored Coins was a project designed to allow other types of data to be transacted on the blockchain besides financial transactions. The goal was to allow stock shares, coupons, property deeds, and other non-fungible items to be traded on the blockchain.
Nonfungible items are items that cannot be replaced and are unique. “For example, a Babe Ruth baseball trading card is non-fungible–if you trade it for another card, you will have something completely different.” In contrast, if you trade a $1 bill for a different $1 bill, it is fungible because you still have a $1 bill. NFTs are nonfungible because they contain data that represents ownership of a digital or non-digital asset and the ownership can be easily validated on the blockchain.
An NFT can be created one of two ways: by manually creating it via coding or by uploading the desired file to an NFT marketplace. Regardless of the creation method, this process is called “minting.” When an NFT is minted, it begins the chain of ownership on the blockchain. Every time the NFT is sold or resold, the new owner is added to the chain. One way to understand it is to think of an NFT as a deed to real property and the blockchain like the local Register of Deeds. Someone questioning its authenticity can easily look at the chain of ownership and trace it back to the original owner.
The fact that the ownership of an NFT can be proven and that they are easily transferable is what makes them intriguing. Blockchains also have a transformative potential: a potential to “redefine how society thinks of ‘ownership’. . . to democratize industries such as art, film, and music, by enabling creators to profit from their works without using a middleman.” NFTs are a promising technology that seeks to help usher in Web 3.0.
Crypto evangelists spread a message that blockchain and NFTs will make the contemporary concept of the law and society obsolete. However, the idea that blockchain and NFTs will replace banks, government, and the law is not in alignment with reality. While the expansion of intellectual property rights into the internet over the past thirty years has been successful, it presently is far short of taming this new wild west. Regulatory agencies and legislatures have not kept pace with the ever-evolving trends and advancements of cyberspace. Thus, it falls on the courts to fill-in this gap.
However, this field may evolve too fast for the courts as well. For example, the Supreme Court is slated to hear an intellectual property case regarding Andy Warhol’s appropriation of artist Lynn Goldsmith’s photograph of the musician Prince. This case has been ongoing since 2017. The issue before the Supreme Court is whether Prince’s appropriation of Goldsmith’s work constituted fair use. To resolve this issue, the court must answer “a growing number of questions regarding [intellectual property.] “What is art anyways? Is there a creative hierarchy when it comes to art and fair use? If so, should there be? Does the creation of art itself absolve otherwise unacceptable conduct?”
While Goldsmith and The Andy Warhol Foundation argue over intellectual property rights, a third party, Brian L. Frye, a law professor at the University of Kentucky College of Law, has extended this debate to the digital realm by selling his own NFTs of Warhol’s appropriation of Goldsmith’s photograph of Prince.
Though, this is not Frye’s first foray into pushing the legal boundaries of NFTs and intellectual property. For one of his shenanigans, Frye added his name to the list of people throughout history who have sold the Brooklyn Bridge. In Frye’s case, it was via an NFT featuring a stock photo of the bridge and someone bought it. Through his antics, Frye argues that most NFT consumers do not care if the person selling the NFT actually owns what it purports to represent. “When [someone] buy[s an] NFT, [they] aren’t buying those rights. [They’re] just buying a nominal relationship to the work. Defective title doesn’t necessarily make a defective NFT. If the market thinks the NFT is cool, it doesn’t matter who owns the work it represents.” Frye argues that NFT consumers purchase NFTs to have the perception of a relationship with the item the NFT purportedly represents, regardless of its legal connection. With this consumer mentality and the issue of Andy Warhol Foundation v. Goldsmith in mind, Professor Frye even notes that his NFT collection “provides some interesting hypotheticals about whether, when, and how NFTs might infringe copyright.”
Though, Frye’s hypotheticals have manifested into real questions. Yuga Labs v. Ryder Ripps seeks to test the boundaries of intellectual property and First Amendment rights as well as mold the legal patchwork to each party’s benefit. Without regulation or clear judicial precedent, it falls on federal district court judges to bring the law to this intellectual property wild west and determine the future of this rapidly growing market.
Pending before the United States District Court for the Central District of California is one ongoing case that has the potential to have wide-reaching effects in the world of NFTs and may set the legal precedent for NFTs and trademark law. The case is Yuga Labs v. Ryder Ripps. Yuga Labs alleges that defendant Ryder Ripps has violated their trademark by falsely designating the origin of his NFTs (15 U.S.C. § 1125(a).)
Yuga Labs is the creator behind the NFT collection known as the Bored Ape Yacht Club (a.k.a. “BAYC”). BAYC is one of the most popular NFT collections (if not the poster child for NFTs) on the market. Some of the NFTs from the BAYC collection have sold for millions of dollars and are owned by various celebrities such as Tom Brady, Justin Bieber, Eminem, Snoop Dogg, Logan Paul, Shaquille O’Neal, and others.
BAYC is a collection of 10,000 “unique and programmatically generated” NFT images consisting of “over 170 possible traits, including expression, headwear, clothing, and more.” Each NFT is a unique image, “but some are rarer than others.” The Bored Ape Yacht Club Collection first sold in April of 2021 for $190 per NFT, but by August 2022 they were selling for around $150,000 each.
Yuga Labs has pending trademark applications for the registration of “The Bored Ape Yacht Club” name, logo, abbreviation, and other related materials. “Since at least April 2021, Yuga Labs has used its BAYC Marks; they have been used for its logo, website, social media pages, marketing, and in connection with its partnerships, products, and services.”
Ryder Ripps is a controversial artist “known for creating artwork that comments on the boundaries between art, the internet, and commerce.” Ripps’s artwork landed him as a member of the 2016 Forbes 30 under 30 class. His most prominent work was his exhibition at Postmasters Gallery in New York City in 2015 which was a critique of internet culture. However, Ripps’s most controversial art was a piece titled Art Whore where he used his commission “to pay ‘sensual masseuses’ from Craigslist to draw for him, to illustrate the point that he was ‘being exploited as an artist.’” Rhizome, a prominent art commissioning and sponsorship organization in New York City, denounced Ripps’s art as “unthinking, unethical, and dull.”
Ripps’s first foray into NFTs was on July 14, 2021, when he reminted CryptoPunk#3100, the number two most expensive NFT which sold for $7.58 million.  Ripps’s reminting was to test the “boundaries and meaning of digital images within a new paradigm of IP law, copyright, computer generated images, and Non-Fungible Tokens.” After defeating a Digital Millennium Copyright Act (DMCA) notice from Larva Labs, the creator of the CryptoPunk NFT collection, Ripps took the position that “you can’t copy an NFT” and that remints are new NFTs entirely.
On May 13, 2022, Ripps began reminting Bored Ape Yacht Club images under his own NFT collection, RR/BAYC, to “recontextualize” the images as well as “illuminat[e the] truths about their origins and meanings.” Ripps, among others, believes that Yuga Labs has intentionally hidden Nazi symbols and racial stereotypes in their trademark and NFTs and he seeks to call them out on it. Ripps argues that his use of BAYC’s trademark is fair use and protected by the First Amendment of the Constitution.
The concept of trademarks is likely older than recorded history; the practice likely began with cattle branding, but archaeologists regularly find clay pots around 3,000 years old with the potter’s mark on them thus making them the oldest known use of trademarks. As civilization advanced, the ancient Greeks and the Romans were known to mark their goods with something to identify the artisan. The practice broadened and became more formal in the Middle Ages with the rise of artisan guilds. It wasn’t until 1584 in England that the concept of trademarks formally entered common law. In the case of Sandforth, the plaintiff was a well-respected clothier known across England, Wales, and “beyond the seas” for the quality of his goods and identified that he made by adding his mark, “J.G.”, onto his goods. The defendant, knowing the quality of the Plaintiff’s goods, added the Plaintiff’s marks to his inferior goods and the defendant sold his goods under the Plaintiff’s mark for two years. When merchants stopped doing business with Plaintiff because of the poor quality of Defendant’s goods, Plaintiff sued Defendant for damages. Though the court ultimately ruled against the Plaintiff because there was no law at the time against the defendant’s acts, the case of Sandforth was nevertheless the first recorded trademark case.
It wasn’t until 1845 when the State of New York enacted legislation “to prevent fraud in the use of false stamps and labels” that the idea of trademark protection would become codified into law. The United States Congress attempted on several occasions to enact federal trademark protection. In 1791, Thomas Jefferson attempted to persuade Congress to use its interstate commerce power to protect the exclusive right to use certain marks on sailcloth but was unsuccessful. In 1870, Congress enacted the first federal trademark statute and cited Article 1, Section 8, Clause 8 of the U.S. Constitution as justification for its enactment. In 1879, the Supreme Court ruled the 1870 trademark statute unconstitutional. In 1881, Congress passed the first constitutional federal trademark law. However, it wasn’t until 65 years later that the modern American trademark regime was born. In 1946, Congress passed the Lanham Act which overhauled U.S. trademark law.
The Lanham Act was enacted using the Commerce Clause of the United States Constitution, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The purpose of the Act is “to provide for the registration and protection of trademarks used in commerce.” Section 43 of the Lanham Act defines a trademark as including:
any word, name, symbol, or device, or any combination thereof used by a person, or which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this Act, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.
“The statutory definition is virtually limitless, as suggested by the word ‘includes.’” “The most common types of trademarks are logos, word marks, and logos with a verbal component.” “Logos are icons, symbols or other images without a verbal component.”
There are two types of trademarks: unregistered and registered trademarks. A registered trademark is a mark that has been filed with the U.S. Patent and Trademark Office (USPTO) and added to the agency’s Principal Register. A registered mark enjoys several statutory benefits that also make prosecuting potentially infringing marks easier for the plaintiff. An unregistered mark is a mark that is not registered on either the USPTO’s Principal or Supplemental Register. However, both unregistered and registered trademarks are protected; the rights to the trademark are created by its use in commerce.
The Fair Use Defense is a defense to trademark infringement whereby the defendant asserts that their use of the Plaintiff’s mark did not constitute an infringement. However, the Fair Use Defense in trademark law operates within a legal patchwork pulling from copyright law and the First Amendment of the Constitution.
Prior to the 1976 Copyright Act, fair use was a judge-made common law doctrine. Fair use traces its origin to the 1740 English case Gyles v.Wilcox, but wasn’t adopted by American courts until 1841 in the case Folsom v. Marsh. The 1976 Copyright Act standardized the doctrine of fair use by generally permitting the use of copyrighted work “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.” To determine whether the use of a copyrighted work constitutes fair use or an infringement, the courts will consider:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
In other words, “fair use is simply the opposite of substantial similarity.”
Returning to how fair use is generally permitted for the purpose of criticism or comment, the First Amendment of the United States provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” This, generally, means that the First Amendment shields defendants from lawsuits based off their speech. However, not all speech is equally protected.
“In the 1970s the Supreme Court established the commercial speech doctrine, which gives limited constitutional protection to speech that ‘proposes a commercial transaction.’” Since the creation of the commercial speech doctrine, the Supreme Court has not ruled whether trademarks constitute commercial speech. However, if “the noncommercial aspects of a trademark use are dominant, as when the trademark is an integral part of a parody, artistic work or commentary, the user’s free-speech rights must be considered.” So long as the defendant’s use of the mark is not in commerce or, if it is in commerce, is not likely to cause consumer confusion, then there is no trademark infringement. The defendant does not have the burden of showing the absence of a likelihood of consumer confusion, but the stronger likelihood of consumer confusion weighs against fair use.
When it comes to criticism or parody how the trademark is used determines whether it qualifies as fair use. If the criticism or parody is directed at the mark itself or mark owner, it has a higher likelihood of being considered fair use. The more evident the criticism or parody is, the less courts will consider the likelihood of consumer confusion.
Ripps alleges that BAYC’s logo is an imitation of the Nazi Schutzstaffel (SS) Totenkopf division emblem. The Totenkopf emblem is, exactly as the German word translates into English, an image of a skull and crossbones. This emblem was infamously used on SS Totenkopf uniform hats, the SS’s honor ring, helmet emblem, and patch.
The patch bears the most resemblance to BAYC’s logo, according to Ripps. Both emblems prominently feature a white skull on a black jagged circular background with white arcing text above and below the skull as well as two symbols (in BAYC’s case, text) on both the left and right sides of the skull. While BAYC’s logo and other trademarks will be discussed more in depth below, it is important to highlight their alleged similarities because it forms the foundation for Ripps’s First Amendment defense and that it is a “neo-Nazi dog whistle” as Ripps claims.
The Totenkopf division of the Nazi SS was not just any Nazi unit; the Totenkopf was the SS division assigned to guard the concentration camps. They were responsible for carrying out the Final Solution which resulted in the Holocaust and the death of 6 million Jews. One must wonder if anyone at Yuga Labs ever looked at BAYC’s logo, noticed the skull on the logo, and asked “Are we the baddies?”
However, the Totenkopf as an emblem (hereinafter referred to as “skull and bones” to avoid confusion with the SS Division) before the end of World War II did not always have such a dark connotation; it was the symbol of the Australian Army’s 26th Cavalry Commando group in the Pacific theater during WWII; it was the Polish Death Hussar’s insignia during the Polish-Soviet War; it was the symbol of the Russian Empire’s 8th Army Shock Detachment during World War I; it was the symbol of the British Army’s 17th Lancer Brigade, and, it was also the symbol used on the flags of numerous late-17th and early-18th century Caribbean pirates including Samuel Bellamy. While “pirates are fun”, Mark Pitcavage, a senior research fellow at the American Defamation League’s (ADL) Center on Extremism, says that it is because of these prior uses of the skull and crossbones throughout history that would support a finding that the symbol is not inherently racist.
Beyond BAYC’s logo, Ripps also alleges that BAYC’s “NFTs display anthropomorphized apes in an act of simianization—disparaging ethnic or racial groups by depicting them as apes.” “Historically, Africa and Africans have been the central targets of simianization discourses. But these were also directed against others subject to racist discrimination. This includes [but is not limited to] the simianization of the Irish, the Japanese, and even the Germans.”
On their website, BAYC state that “Each Bored Ape is unique and programmatically generated from over 170 possible traits, including expression, headwear, clothing, and more.” However, Ripps points to an interview with Yuga Labs’s co-founder, Greg Solano (aka “Gargamel”), where Ripps believes Solano admitted that not all the NFTs were randomly designed.
In particular, Ripps points to two NFTs, BAYC #3721 and BAYC #6281, as being the most obvious example of simianization. BAYC #6281 is an image featuring a white ape wearing a kamikaze headband on its head which Yuga Labs refers to as “Sushi Chef Headband” trait. BAYC #3721 is an image featuring a pink ape with gold teeth and wearing a gold jacket and gold chain, which Yuga Labs refers to as “Hip Hop” clothing trait, in reference to the popular musical genre and lifestyle pioneered by African Americans. Ripps claims that BAYC #3721 and BAYC #6281 siminize the Japanese and African Americans and are but the most obvious examples of embedded simianization in the collection.
Both Pitcavage and Carla Hill, another senior researcher at the ADL’s Center for Extremism, say that BAYC’s “Hip Hop” clothing trait and “Sushi Chef” headwear are problematic. “‘Some of it is clearly offensive,’ Hill says. ‘It’s not exempt from criticism.’ But Pitcavage notes that [the “Hip Hop” and “Sushi Chef” traits are] a very small subset of the 10,000 available apes. ‘Some look problematic out of context,’ he says. ‘They look less so in the context of all the others.’”
However, Ripps’s argument that BAYC’s “Hip Hop” clothing trait is simianization and offensive to African Americans may have been turned on its head. Two famous BAYC owners, Snoop Dogg and Eminem, recently starred as their Bored Apes avatars at MTV’s 2022 Video Music Awards. In the music video, the two rappers are willingly depicted as apes and perform as a three-dimensional rendering of their NFTs. This music video can be viewed as poking a hole in Ripps’s argument that BAYC is offensive and simianization, or, it can be viewed as celebrities promoting offensive material.
Nevertheless, Ripps still believes that BAYC has engaged in intentional simianization and that the similarities between BAYC’s logo and the SS Totenkopf support a finding that Yuga has embedded Neo-Nazi dog whistles in their products.
The issue before the Central District of California is whether NFTs similar in appearance, minted and tied to separate individuals, are distinct and dissimilar goods. At the heart of this case, the crypto evangelist message that NFT ownership and creation are easily provable is on trial. At stake, is the status quo of the NFT world or the heavier-handed involvement of intellectual property laws.
Yuga Labs argues that Ripps’s use of their marks falsely designated the origin of the NFTs (15 U.S.C. § 1125(a).) Their chief argument for false designation of origin is that Ripps’s RR/BAYC NFTs are indistinguishable to the ordinary consumer from official BAYC NFTs. Yuga Labs points to several RR/BAYC purchasers who have promoted their RR/BAYC NFTs as legitimate BAYC NFTs and have thus created confusion in the marketplace. To reinforce their claim, Yuga Labs also points to the RR/BAYC social media pages which use the same profile picture and cover art as the official BAYC social media pages.
Although not mentioned by either Yuga Labs or Ripps in their court filings, supposedly on June 20, 2022, RR/BAYC was the second most traded NFT collection on the popular NFT marketplace Opensea, beating BAYC in trade volume. However, this information is hard to verify as Opensea has delisted RR/BAYC and deleted all statistics related to the collection.
However, Ryder Ripps asserts that RR/BAYC is protected by the First Amendment of the Constitution because it was “made in connection with a public issue.” He argues that he “created the RR/BAYC project with the specific aim of publicizing how Yuga Labs’s founders have embedded Yuga Labs and the BAYC collection with racist and neo-Nazi dog whistles” and that he was commissioned by individuals to remint the BAYC NFTS for which every purchaser signed “a disclaimer acknowledging that the RR/BAYC NFTs are ‘a new mint of BAYC imagery, recontextualizing it for educational purposes, as protest and satirical commentary.’”
Before the facts and claims of the case can be analyzed, it must first be determined whether the court has jurisdiction to hear this case. Previously, U.S. Courts had jurisdiction over cases involving cryptocurrency and blockchain mainly because the website owned by the defendants utilized servers in the United States. However, since Yuga Labs filed its lawsuit against Ryder Ripps, the Ethereum blockchain has changed the method it processes transactions. Technical details aside, the change to Ethereum was major and its effects are already being felt.
Since the change, 53% of the Ethereum Blockchain is now validated by four companies. This has raised fears that the network is becoming centralized. Beyond network governance concerns, the change may have availed all Ethereum transactions to U.S. jurisdiction, or so the U.S. Securities and Exchange Commission (SEC) claims. In a lawsuit (separate and unrelated to Ripps and Yuga Labs) filed by the SEC, the regulatory agency claims that a majority of Ethereum transactions are validated in the U.S. so therefore the SEC and the U.S. have jurisdiction over all Ethereum transactions.
However, there is opposition to the SEC’s claims. Professor Brian L. Frye says that the SEC’s claim is unprecedented. Previous case law dealing with blockchain transactions has instead indicated the location of the nodes that validated the transaction is where the transaction occurred. The SEC’s claims also stand in opposition to the crypto evangelist message that crypto is free from government regulation and control.
While Professor Frye says that the SEC’s claims have no legal weight, the question of whether and under what circumstances the U.S. has jurisdiction over crypto transactions is still being argued in the courtrooms and debated in the halls of Congress. While this question is still open and can have a drastic impact on cryptocurrency and NFTs, it will not be addressed further in this paper. Whatever consensus is eventually reached, it could maintain the status quo of this lawsuit or render Yuga Labs’s claims nonjusticiable due to lack of jurisdiction.
Ryder Ripps argues that RR/BAYC is protected by the First Amendment of the Constitution because it is “performance and appropriation art that expresses criticism against Yuga’s use of racist, neo-Nazi, and alt-right dog whistles.” The First Amendment guarantees that “Congress shall make no law . . . abridging the freedom of speech.” In other words, “the First Amendment prohibits Congress and other government entities and actors from abridging the freedom of speech.” However, the “U.S. Const. amend. I protects individuals only against government, not private, infringements upon free speech rights. Individuals bringing actions against private parties for infringement of their constitutional rights, therefore, must show that the private parties’ infringement somehow constitutes state action.”
The state action that Ripps has invoked is California’s Anti-SLAPP statute which “allow[s] for early dismissal of meritless First Amendment cases aimed at chilling expression through costly, time-consuming litigation.” The statute provides that a defendant may strike a complaint if it “‘arises from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’” However, some judges on the Ninth Circuit have previously called on the court to reconsider whether federal courts should apply the anti-SLAPP statute. Other circuits, such as the Second, Fifth, and Eleventh Circuits have rejected the application of anti-SLAPP statutes.
As it stands, California’s anti-SLAPP statute applies. As such, the court will apply the Second Circuit’s Roger’s Test “to balance the competing interests at stake when a trademark owner claims that an expressive work infringes on its trademark rights.” The Roger’s Test states that “The Lanham Act, 15 U.S.C.S. § 1125(a) [trademark infringement claims] should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.” “That balance will normally not support application of the Lanham Act, unless the use of the mark has no artistic relevance to the underlying work whatsoever, or explicitly misleads consumers as to the source or the content of the work.” In other words, the Roger’s Test weighs the artistic relevance of the infringement against the likelihood of consumer confusion.
While the likelihood of consumer confusion is discussed later, the artistic relevance of RR/BAYC is a point that Ripps argues is symbolic and something BAYC argues is not apparent. BAYC argues that the “sale and promotion of the RR/BAYC NFTs is merely a business venture to trade on Yuga Labs’ brand value, resulting in a massive windfall for
Defendants.” They liken the facts of this case to the case Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC. In the case, Nature Labs sold a line of pet perfumes with names that parody perfumes sold for humans. The product at the center of the case was Nature Labs’ Timmy Holedigger line, a parody of Tommy Hilfiger. The Nature Labs Court held that when “the mark is being used at least in part to promote a somewhat non-expressive, commercial product, the First Amendment does not extend to such use, or to the extent that it does, the balance tips in favor of allowing trademark recovery, if in fact consumers are likely to be confused.” The rational against BAYC is the fact that the ruling in Nature Labs turned on whether or not consumers were confused. The Court ultimately ruled in favor of Nature Labs because there was no likelihood of consumer confusion. In that vein, BAYC does not offer any evidence of actual consumer confusion; only their assertions.
On that note, BAYC would do well to read Nature Labs and McCarthy on the subject: “No one likes to be the butt of joke, not even a trademark. But the requirement of trademark law is that a likely confusion of source, sponsorship, or affiliation must be proven, which is not the same thing as a ‘right’ not to be made fun of.” The question of whether or not Ripps’s anti-SLAAP motion will succeed depends largely on whether the Court finds there was consumer confusion.
On a separate but parallel free speech track, Ripps, in his motion to dismiss, asserts that his use of BAYC’s trademarks is nominative fair use. Nominative fair use “is a use of another’s trademark to identify the trademark owner’s goods or services.” In the Ninth Circuit, the elements of nominative fair use are:
First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.
“[A] defendant who raises the nominative fair use issue need only show that it uses the mark to refer to the plaintiff’s trademarked goods or services. The burden then reverts to the plaintiff to show a likelihood of confusion under the nominative fair use analysis.”
Ripps asserts that the first element is met because his “appropriation art project would not be readily identifiable, or even possible, without using Yuga’s marks to conjure up the BAYC collection.” In other words, use of BAYC’s trademarks was necessary to meet the goal of his project. To support this assertion, Ripps points to Toyota Motor Sales, U.S.A., Inc. v. Tabari where the Ninth Circuit Court of Appeals held that use of the “Lexus” trademark was nominative fair use because without it, Tabari could not convey their message that they specialize in Lexus vehicles. While Tabari did not need to use the Lexus trademark the Ninth Circuit has ruled that a strict doctrine of necessity for nominal fair use is “draconian.”
In support of the second element, Ripps argues that his use of BAYC’s marks and NFT images is satirical. While Ripps points to case law that supports his use of BAYC’s marks and NFT images, he fails to highlight how his work is satirical. Without such a demonstration, his work appears to be a duplication of the BAYC collection. “Copying that is virtually complete or almost verbatim is eliminated from the fair use defense.” The fact as well that Ripps sold and profited off RR/BAYC “tends to weigh against a finding of fair use.” Though, Ripps can argue that RR/BAYC is not a duplication, but rather a different product entirely. However, it may still not be protected by fair use.
Regarding the third element, Ripps asserts that he “has done nothing to suggest sponsorship or endorsement by Yuga.” To support this, Ripps points towards his own hostility online towards BAYC.
Though, this analysis will not be clean cut or easy; the problem that the court is likely to encounter in analyzing Ripps’s fair use defense is how to balance Ripps’s commercial activity with his intention of it being an artistic expression and with the likelihood of consumer confusion. “Although the First Amendment does not prevent trademark law from applying to artistic works, courts must be careful not to trammel on free speech values in protecting trademarks.” However, in order to assert a fair use defense, the work must express some idea; which Ripps’s work fails to do. The idea that Ripps expresses is only found in his motivation behind reminting the BAYC NFTs, not in the work itself. Coupled with the fact that Ripps has profited from RR/BAYC, it is likely that the court will find RR/BAYC to be a duplicative work and that Ripps’s fair use defenses will be dismissed by the court.
Though, the district court did dismiss Ripps’s fair use defense. The district court rejected Ripps’s claim of nominative fair use because “Defendants are not using the BAYC Marks to sell Plaintiff’s BAYC NFTs, but to sell their own competing RR/BAYC NFTs” and, because Ripps “used the entirety of the BAYC Marks without modification, including the ‘visual trappings’ of [BAYC’s] brand.”
The district court further denied Ripps’s Anti-SLAAP motion because Yuga Labs’ claim of trademark infringement did not arise from Ripps’s free speech. The district court found that the “sale of RR/BAYC NFTs is no more artistic than the sale of a counterfeit handbag, making the Rogers test inapplicable.” The district court continued by noting that even if the Rogers test did apply, “Defendants’ use of the BAYC Marks is not artistically relevant to Defendants’ ‘art’” and “that Defendants’ use of the BAYC marks is explicitly misleading.” The district court reached this conclusion because merely engaging in alleged protected free speech that is relevant to Plaintiff’s claim is not enough to prevail on an Anti-SLAAP motion. The district court also noted that this case does not stem from Ripps’s allegations of Yuga Labs’ purported racism; “[i]nstead, Plaintiff’s claims are limited to and arise out of [Ripps’s] unauthorized use of the BAYC Marks for commercial purposes.”
However, Ripps has a appealed the judge’s ruling to the Ninth Circuit which is currently pending.
Yuga Labs is alleging that Ryder Ripps falsely designated the origin of his NFTs under 15 U.S.C. § 1125(a), also known as §43 of the Lanham Act. The law provides that “any person who in connection with any goods. . . uses in commerce any word, term, name, symbol, . . . which is likely to cause confusion . . . shall be liable by any person . . . likely to be damaged by such act.” In other words, to prevail on a claim of false designation of origin, a plaintiff must meet five elements. The first element is that the defendant either falsely designates the origin of the good or uses any word, term, name, device, or any combination thereof that may be associated with another origin. The second element is that the use was in interstate commerce. The third is that the use was in connection with goods or services. The fourth element is that the false designation is likely to cause confusion or deceive a consumer as to the relationship of the origin of the good or the relationship between the defendant and the trademark holder. Finally, the plaintiff has been or is likely to be damaged by the defendant’s actions.
At issue in Yuga Labs v. Ryder Ripps, is the fourth factor, the likelihood of consumer confusion. Generally, similar goods in a similar market are “more likely than unrelated goods to confuse the public as to the producers of the goods.” To determine the likelihood of confusion, the Ninth Circuit Court of Appeals employs the eight-factor Sleekcraft Test which examines the
(1) strength of the mark, (2) proximity of the goods, (3) similarity of the marks, (4) evidence of actual confusion, (5) marketing channels used, (6) type of goods and the degree of care likely to be exercised by the purchaser, (7) defendant’s intent in selecting the mark, and (8) likelihood of expansion of the product lines.
However, the Sleekcraft Test is not exhaustive, and courts can look to other factors beyond the enumerated. When it comes to the internet, the Ninth Circuit has previously placed greater emphasis on the similarity of the marks, the parties’ use of the internet to market and sell their products, and the relatedness of the goods or services; these factors are sometimes referred to as the “Internet Troika.”
Although distinguishable, there are three cases from the Ninth Circuit that are important to discussing Yuga Labs’s claim.
The first case is Brookfield Communications Inc. v. West Coast Entertainment Corporation. In 1993, Brookfield created a “computer software featuring a searchable database containing entertainment-industry related information” and marketed it under the name “Movie Buff.” After getting the name Movie Buff trademarked, in 1997, Brookfield began selling subscriptions to Movie Buff through its website “moviebuffonline.com.” In October 1998, Brookfield learned that West Coast intended to launch its own searchable entertainment database similar to Movie Buff on “moviebuff.com.”
Ultimately, the court found in favor of Brookfield holding that West Coast’s product caused confusion among consumers and violated Brookfield’s trademark. The Ninth Circuit ruled that “the relatedness of each company’s prime directive isn’t relevant for the determination of likelihood of confusion. Instead, the focus is on whether the consuming public is likely somehow to associate each company’s products with each other.”
The next case, GoTo.com Inc. v. Walt Disney Co., largely piggybacks off the rule in Brookfield. In 1997, GoTo.com launched a search engine that prominently featured its logo, a traffic light with the words “GO” and “TO” in a white font stacked vertically within a green circle. In December of 1998, Disney launched “The Go Network” which was a search engine for their various owned websites. The Go Network’s logo was a traffic light and within a green circle was the word “GO.”
The Ninth Circuit ultimately ruled in favor of GoTo.com holding that the marks were similar and caused confusion among consumers. The court reached this conclusion by ruling that “navigating amongst websites involves practically no effort whatsoever, and arguments that Web users exercise a great deal of care before clicking on hyperlinks are unconvincing.”
However, NFTs, especially those in the BAYC and RR/BAYC collections are expensive goods. The lowest-priced BAYC NFT (as of September 12, 2022) is on sale for $126,000 (74 Eth); that is not comparable to clicking on a free website link. One would think that “the greater the value of the article, the more careful the typical consumer is expected to be.” However, can that be the case when NFT consumers are “buying” the Brooklyn Bridge? The Restatement (Third) of Unfair Competition offers little guidance except suggesting the added element of observing “the characteristics of the prospective purchasers of the goods or services and the degree of care they are likely to exercise in making purchasing decisions.” Perhaps then, while some NFT buyers may exercise due diligence and not be easily deceived, the law should seek to protect the credulous and the ruling from GoTo.com should be viewed in that light.
The third case is Network Automation v. Advanced Systems Concepts. Both Network Automation (“Network”) and Advanced Systems Concepts (“Systems”) were in the business of selling job scheduling and management software. Systems trademarked their product under the name “Active Batch” and Network named their product “Auto-Mate.” The trademark infringement claim emerged when Network began purchasing specific keywords so that when a potential customer searched “Active Batch” on Google or Bing search engines, a sponsored link appeared directing users to Network’s website.
The District Court applied the Internet Troika factors and the rule from GoTo.com and found that because internet users exercise “generally a low degree of care” there was a likelihood of confusion. However, the Ninth Circuit Court of Appeals reversed the district court because they relied too heavily on the Internet Troika factors in their analysis.” Instead, the court ruled that the Sleekcraft factors should be applied with flexibility.
Synthesizing the rules from Brookfield, GoTo.com, and Network, two competing standards for evaluating trademark infringement emerge. The first is the Brookfield-GoTo.com standard, a stricter standard whereby the intent of the infringing party is not relevant and consumers on the internet are viewed as more likely to be confused by similar marks. The second, the Brookfield-Network standard, is a more relaxed and creative standard that calls for courts to develop their own trademark infringement standard that best fits the new technology. However, the problem with the second standard is that it requires courts to understand the new technology and set rules for it.
Applying the Brookfield-GoTo.com rule, Yuga Labs’s claim that Ripps confused consumers with RR/BAYC’s trademark infringement is plausible. In the complaint, and acknowledged by Mr. Ripps, BAYC and RR/BAYC products are similar in appearance and name with the only distinguishing feature being the label denoting whether they were a part of the BAYC or RR/BAYC collections. Adding to the likelihood of confusion, Ripps’s marketing of RR/BAYC is similar to BAYC’s. Finally, the Brookfield-GoTo.com rule eliminates Ripps’s concerted efforts to avoid confusion by having RR/BAYC purchasers sign a disclaimer because GoTo.com sees internet users as credulous.
However, applying the Brookfield-Network rule yields the opposite conclusion. Under this analysis, a court is unlikely to find that RR/BAYC confused consumers. This is because BAYC’s logo and marks, at worst, have become generic in the marketplace, or, at best, are not distinct enough to warrant protection; the internet is too broad and common of a channel to constitute similar marketing; and, BAYC’s products and trade dress have become too generic in the marketplace.
The first element of the Internet Troika analysis is the similarity of the marks. The logo of RR/BAYC is similar to that of BAYC: both prominently feature a white-colored ape skull design on a black circular background and utilize white text. However, the logos are distinct in that BAYC’s logo features text that reads “Bored Ape” and “Yacht Club” on the top and bottom of the logo along with their initials “BA” and “YC” on the left and right sides of the skull. In comparison, RR/BAYC’s logo features text that reads “This logo is based” and “on the SS Totenkopf” on the top and bottom of the logo along with “18” and “teeth” on the left and right sides of the skull. The fonts of the two logos are also different: BAYC’s logo uses a font with sharp edges whereas RR/BAYC’s logo uses a font with rounded edges. The spacing of the text is also different: the letters on BAYC’s logo are more spaced out whereas the letters on RR/BAYC’s logo are closer together. Graphic design analysis aside, while distinct in subtle ways, the differences between the two logos are not easily noticeable; when minimized, the logos are indistinguishable from each other.
Despite their logo similarities, Yuga Labs’s trademarks are not yet registered marks.  All of BAYC’s marks have been published in the Trademark Gazette but are not yet on the Principal Register.Ripps’s legal team has also filed opposition to the marks.
The registration of a trademark on the U.S. Patent and Trademark Office’s Principal Register offers benefits and rights not held by unregistered mark holders. “Registration serves as constructive notice of the registrant’s claim of ownership of the mark. It also is prima facie evidence of the validity of the registered mark . . . and of the owner’s exclusive right to use the registered mark.” “Federal trademark registration alone may be sufficient in an appropriate case to satisfy a determination of distinctiveness. However, while the registration adds something on the scales, a court must come to grips with an assessment of the mark itself.”
Because Yuga Labs’s trademarks are not listed on the Principal Register, they are unregistered marks. Though, unregistered marks are still afforded some protection, depending on the category they fall into. The Ninth Circuit “recognize[s] four categories of terms with regard to potential trademark protection: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful terms.” Generic marks are trademarks that do not identify the source of the product. They consist of the common name of the goods or services to which they are applied. “Descriptive marks define qualities or characteristics of a product in a straightforward way that requires no exercise of the imagination to be understood.” To be protected, descriptive marks require secondary meaning which means that they “become distinctive of the trademark applicant’s goods in commerce.” A Suggestive mark does not require a showing of secondary meaning but instead suggests the distinctiveness of the mark. An arbitrary mark is a common word unrelated to the goods or services and a fanciful mark is an invented word or phrase “invented solely to function as a trademark.”
It is likely that BAYC’s trademark of its name, Bored Ape Yacht Club, falls under the descriptive marks category. BAYC’s NFT collection features images of apes in various outfits and accessories while possessing bored expressions. BAYC refers to its NFT products as “Bored Apes.” Even the public refers to BAYC’s NFTs as “Bored Apes.” BAYC’s use of the term “Yacht Club” refers to the social aspects of owning a BAYC NFT including the member-only graffiti board and Discord server. Under this viewing of the mark, it appears the BAYC’s trademark is descriptive because it merely describes features of the products. However, an argument can be made that the mark is instead suggestive. The term “Ape” is a slang term used primarily by individuals interested in investing and blockchain. Yuga Labs’s CEO, Nicole Muniz, says that “The term ape is used affectionately in the crypto community to mean early adopters.” However, the term also refers to consumers who do not research the NFT before buying it.
Yuga Labs does somewhat police the use of the term “Bored Ape” to protect its claim to its trademark. They have filed oppositions to organizations seeking to also trademark the term. Despite this, there is evidence that suggests that the term “Bored Ape” has become generic and detached from the brand and is rather associated with the product itself in the eyes of the public. This can be seen by other products that feature images of BAYC NFTS and other NFT collections that are visually similar to BAYC utilizing the term “Bored Ape.”
However, adding support to the argument that the mark is suggestive, the use of “Yacht Club,” while common words, can be seen as unrelated to the goods and services offered by BAYC. A yacht club is “a club organized to promote and regulate yachting and boating;” that is unrelated to NFTs. However, “Yacht Club” could also be in reference to internet slang that has a different suggestive connotation; especially considering some of the features associated with owning a BAYC NFT. With that said, looking at the mark through the lens of internet slang does not paint a pleasant suggestive mark.
Though, weighing against Yuga Labs’s claim that BAYC and its logo are a distinctive mark is the fact that its name has been falsely associated with other companies and the fact that BAYC trademarks are being used on a large number of third-party products. Recently a BAYC NFT holder began adding his BAYC NFT to a new line of hard seltzer alcoholic products and media organizations have been implying that BAYC was a part of the drink’s creation. This is on top of accounts on sites such as Redbubble and Etsy.com using BAYC’s logo and trademark to outright impersonate BAYC as well as sell products with BAYC’s marks.
For the sake of argument, BAYC’s trademark of its name will be treated as an unregistered descriptive mark. As such, to be protected, BAYC must prove that its mark has established secondary meaning. In the Ninth Circuit, “‘secondary meaning has been defined as association, nothing more. The basic element of secondary meaning is the mental association by a substantial segment of consumers and potential consumers between the alleged mark and a single source of the product.” Thus, this rabbit hole results in the question of whether the consumer was confused; a question which will be answered in section III(C)(4).
Besides the overall general similarities between BAYC and RR/BAYC’s logos, the only concrete identical component of the logos is the use of BAYC’s ape skull design. Both logos prominently feature the ape skull design in the same location on their logos and in roughly the same proportion. BAYC’s ape skull design is published in the Trademark Gazette; however, it is not yet listed on the Principal Register. As an unregistered trademark, the question is what category of trademarks the ape skull design falls inside.
It can be argued that BAYC’s ape skull design is a victim of genericide and has become a generic mark. “Genericide occurs when the public appropriates a trademark and uses it as a generic name for particular types of goods or services irrespective of its source.” “Genericide can occur ‘as a result of a trademark owner’s failure to police the mark, resulting in widespread usage by competitors leading to a perception of genericness among the public, who sees many sellers using the same [mark.]”’ To determine whether a mark has fallen victim to genericide, the court must ask “whether the primary significance of the [mark] in the minds of the consuming public is now the product and not the producer.”
The ape skull design is simply a two-dimensional image of an undescriptive primate skull. The mark itself is similar in design to other artwork on the internet as well as the logo of other NFT collections. With this, Ripps could argue that BAYC’s ape skull design “does not identify the source of the product” or, because of the numerous NFT collections utilizing the mark, that the public associates the mark with the product and not the producer; therefore, it is a generic mark and not trademarkable.
However, BAYC’s ape skull design could be considered arbitrary because it is a “common [image] unrelated to the goods or services.” Because an ape skull, potentially, has no direct connection to the NFT market it can be viewed as arbitrary.
Though, to defeat the argument that it is a generic mark, BAYC will need to show how its mark is not similar to others’ work and that it was intentionally designed. Here, Ripps’s attacks against BAYC’s mark work in BAYC’s favor. Ripps asserts that BAYC’s ape skull design (and logo generally) are an imitation of the Nazi Schutzstaffel (SS) Totenkopf emblem. This is supported by Ripps’s observation that the ape skull design features 18 teeth which Ripps alleges is an intentional reference to Adolf Hitler. If what Ripps alleges is true, this would support an argument that the ape skull design is an arbitrary mark because Nazi iconography is unrelated to the NFT market.
Even if BAYC’s ape skull design is an imitation of the Nazi SS Totenkopf, it is still eligible for trademark registration and protection. The Supreme Court has held that offensive marks may be trademarked. This is because trademarks are private speech, not government speech, and cannot be subject to government viewpoint restraints.
The second element of the “Internet Troika” is to compare the marketing channels utilized to see if their similarities would cause confusion. In support of their argument that RR/BAYC has caused confusion in the marketplace, BAYC points to the mimicry of BAYC’s social media accounts by accounts allegedly connected to RR/BAYC. Specifically, BAYC points to three Twitter accounts: @RR_BAYC, @BoredApeV3, and Ryder Ripps’s personal account, @ryder_ripps.
In their complaint, Yuga Labs alleges that @RR_BAYC used the same profile picture and header photo as the official BAYC Twitter page. Yuga Labs claims that a May 28, 2022, a tweet from @RR_BAYC reached “almost 200,000 ‘tweet impressions,’ meaning its tweets were seen that many times over a period of two weeks.” However, the only information about @RR_BAYC is available in Yuga Labs’s complaint as the account is no longer available. Taken as true, however, the account is visually similar. Though, undermining BAYC’s claim is the difference in the number of followers between the two accounts. BAYC’s official account had more than 965,000 followers at the time the complaint was filed compared to @RR_BAYC which only had 1,519.
The difference in followers is even worse when viewing the other allegedly confusing account, @BoredApeV3. This account (at the time of writing) has a grand total of 35 followers. The reason that Yuga Labs alleges this account is causing confusion is because it uses the same profile picture and header photo as the official BAYC Twitter page as well as retweeting tweets tagging the official BAYC Twitter account. The only connection this account appears to have to RR/BAYC is that its account description reads “Created by @ryder_ripps.” Even if the account was created by Ryder Ripps, it does not promote anything related to RR/BAYC; if anything, it appears to promote BAYC.
It is possible that @BoredApeV3 is little more than a fake or bot account. Fake accounts are not uncommon on Twitter; in recent years, fake accounts have gained popularity and compromise a large portion of social media accounts. These fake accounts can be used for anything from protecting the user’s anonymity online to promoting products or messages that may otherwise not be seen.
Finally, Yuga Labs argues that Ryder Ripps is confusing consumers by advertising RR/BAYC on his personal Twitter account. Specifically, Yuga Labs alleges that Ryder Ripps utilized a header image for his profile that featured the BAYC ape skull design in the bottom left. As of writing, Ryder Ripps’s header image does not contain the BAYC ape skull design nor the image provided in Yuga Labs’s complaint; in fact, it is an entirely different image of cows on top of a trash pile.
Despite the different header images, there are some tweets by Ryder Ripps that can be construed as promoting RR/BAYC. One example is a tweet where Ripps announced he was giving away 1 RR/BAYC NFT and then proceeded to post a picture of the corresponding identical BAYC NFT. However, this discussion is a slippery slope that deals more heavily with First Amendment and individual free speech issues than trademark infringement. Avoiding that rabbit hole, Ripps does appear to acknowledge the possibility of consumer confusion on his Twitter account. In one Twitter thread discussing the similarity of BAYC and RR/BAYC, a Twitter user, @warrbo, rhetorically asks Ripps “isn’t the goal of trademark law to protect naive consumers to know the source of their goods? [S]o the standard is yes expecting illiteracy from consumers and protecting against their confusion by similar image marks, right?” Ripps then appears to concede to the user’s point by replying “did [you] buy an rrbayc thinking it was a bayc? [I]f not [I] think [you] should respectfully stfu.”
Despite the argument of whether @RR_BAYC did everything Yuga Labs alleged and whether @BoredApeV3 is a real account or associated with RR/BAYC or Ryder Ripps, the determination of whether RR/BAYC and BAYC utilized similar marketing channels to promote their products hinges on the court’s usage of either of the two contrasting standards synthesized from Brookfield, GoTo.com, and Network.
The first standard, Brookfield-GoTo.com, says that if the marks utilized by the internet marketing channels are similar, then consumer confusion is likely. Accepting the claims made by Yuga Labs as true, @RR_BAYC is visually similar to BAYC’s Twitter page; @BoredApeV3 does mimic BAYC’s official Twitter page, and Ryder Ripps appears to admit on his Twitter page that there may be consumer confusion caused by RR/BAYC. Under the first standard, a court may find RR/BAYC employed similar marketing channels as BAYC which led to consumer confusion.
However, the second standard, is more relaxed and reaches an inverse conclusion. Under the Brookfield-Network standard, the court is likely to find that because so many products are advertised online, general online marketing does not support a likelihood of consumer confusion. This standard calls for courts to develop their own trademark infringement standard that best fits the new technology. The Court in Caryn Mandabach Productions v. Sadlers Brewhouse provides an excellent example of utilizing this approach. In the case, the defendants created a line of liquor named after and used quotes from a Netflix show produced by the plaintiffs. Defendants then advertised and sold their liquor online. The court ultimately held that,
“‘Given the broad use of the Internet today,’ ‘it would be the rare commercial retailer that did not advertise online, and the shared use of a ubiquitous marketing channel [such as the internet] does not shed much light on the likelihood of consumer confusion.’ Accordingly, the marketing channels factor does not favor a finding of a likelihood of confusion.”
Thus, when viewing the facts in light of the second standard, RR/BAYC and BAYC’s use of similar marketing channels would not contribute to consumer confusion.
The third element of the “Internet Troika” is the similarity of the products. On the surface, BAYC and RR/BAYC NFTs appear to be identical products. In fact, Ripps does not appear to dispute that they are visually identical products. Because a credulous buyer would not visually be able to tell a difference between the two similar NFTs, under the Brookfield-GoTo.com standard, this is enough to find that the products are similar.
However, the Brookfield-Network standard invites the court to look beyond the surface and dive deep into the technology to understand whether the two collections are identical. Diving in, to determine whether goods are identical, “a court should consider whether the goods are . . . similar in use or function; or sold to the same class of purchasers.” If the goods are identical, “the danger presented is that the public will mistakenly assume there is an association between the producers of the related goods.”
Discussion of whether the RR/BAYC and BAYC NFTs are sold to the same class of purchaser cannot be easily resolved. While, yes, both collections are sold to the broader NFT consumer market, it can be argued that RR/BAYC serves a niche market dedicated to opposing BAYC and Yuga Labs.
Under this view, the facts of the present case are similar to that of the case Thane International v. Trek Bicycle Corporation. Since 1977, Trek has manufactured bicycles under the name “Trek” and has become one of the most popular and recognized bicycle brands. “In 1981, Trek was granted a United States trademark for the use of TREK on bicycles and bicycle frames.” In 1997, Thane developed the ”OrbiTrek” which was a “dual directional elliptical glider stationary exercise machine for indoor use.” Thane says that the name “OrbiTrek” was developed independently of Trek Bicycles and was rather inspired by the television show Star Trek because the name depicts the OrbiTrek as a “space-age, high-tech, and futuristic product.”
Ultimately, the Ninth Circuit Court of Appeals found that while both companies engaged in the broader sporting goods market, Thane served the niche stationary exercise machine market and did not infringe on Trek’s trademark. The rule from Thane International v. Trek Bicycle Corporation is that similar products and marks may not be identical if the defendant is famous in a niche market not served by the claimant.
This is where Ripps’s disclaimer agreement with every RR/BAYC purchaser and the RR/BAYC sales volume figures come into play. Depending on whether the Brookfield-GoTo.com or Brookfield-Network standard is applied, these facts can yield different conclusions.
A court applying the Brookfield-GoTo.com standard is likely to find that Ripps’s intent to minimize consumer confusion by having purchasers accept a disclaimer agreement should not be a factor in determining whether a consumer was confused. Further, the sales figures lend support that some of those purchasers may have thought they were purchasing a BAYC NFT. It is also likely that a court would be unconvinced that there is a niche market revolving around anti-BAYC and anti-Yuga Labs sentiment because the NFT market is already a niche market within the cryptocurrency market.
However, a court applying the Brookfield-Network standard could find that the two collections serve different markets. Ripps’s disclaimer agreements indicate that he in good faith attempted to mitigate any potential consumer confusion. The sales data shows that consumers, with the knowledge that the collections are different, were willing to purchase the NFTs and support Ripps’s message and allegations against Yuga Labs. The idea that a niche marketplace against BAYC and Yuga Labs can also be found on social media where users on Twitter and TikTok call for BAYC owners to “burn” their NFTs (send them to an invalid wallet and render them unusable.)
Despite the negativity towards BAYC and Yuga Labs in this niche, it is still a market BAYC can enter. It is not unprecedented for an individual or organization to make money off hate against it; Elvis is perhaps the best example of this. Elvis’s manager sold merchandise in opposition to the legendary musician to profit off the anti-Elvis market. However, “any fame [Yuga Labs and BAYC] may acquire for its [products] in the future in the [niche market that opposes them} could not preclude [Ryder Ripps and RR/BAYC] from [selling his products] in that market.
The next question is whether BAYC and RR/BAYC are similar in use and function. In order to compare and contrast the two, the features of each need to be known.
Besides being a speculative investment, BAYC offers two features to its owners: the social features, including the graffiti board and Discord server, as well as the commercial rights to the NFT. To access the social features, users must connect their wallets and verify that they own a BAYC NFT. BAYC is a collection of 10,000 “programmatically generated” NFTs featuring images of apes in different clothing, expressions, and accessories.
RR/BAYC, on the other hand, does not offer any direct features. It also is a remint of BAYC meaning the images are the same and their numbering corresponds to the same image in the BAYC collection. Instead, RR/BAYC serves as a token of the purchasers’ understanding and commitment to:
“(1) to bring attention to Yuga’s use of racist and neo-Nazi messages and imagery, (2) to expose Yuga’s use of unwitting celebrities and popular brands to disseminate offensive material, (3) to create social pressure demanding that Yuga take responsibility for its actions, and (4) to educate the public about the technical nature and utility of NFTs.”
In other words, RR/BAYC was a part of Ripps’s “‘vision to create an army of educators’ with respect to Yuga’s connections to neo-Nazi and alt-right culture.”
Depending on whether the court applies the Brookefield-GoTo.com or Brookfield-Network standard, it could arrive at drastically different conclusions on whether BAYC and RR/BAYC are similar products and if BAYC’s products deserve protection.
Applying the first standard, it is likely that the court would find that BAYC and RR/BAYC are similar products. The court could reach this conclusion by seeing that both products contain the same images, and both utilize the same product names. The court would disregard the differences in features because the intent of the infringing party does not matter. It is also likely that the court would find that BAYC’s products deserve protection because they entered the market first. A court applying this standard is also likely to be unconvinced by the technical argument that all NFTs are inherently different.
However, a court applying the second standard is likely to find that the products are similar, but that BAYC’s products do not deserve protection. This finding would be the result of the courts finding that BAYC’s products have fallen victim to genericide and or that because of the technology behind NFTs, every NFT is inherently distinct.
The design and image of the BAYC NFTs fall under the category of trade dress. “Trade dress refers generally to the total image, design, and appearance of a product and may include features such as size, shape, color, color combinations, texture or graphics.” Trade dress protection only extends to elements of a product that are nonfunctional. To determine what elements constitute functionality, courts must examine the product’s individual elements and consider them in the context of the whole product. “A product feature is functional and cannot serve as a trade[dress] if the product feature is essential to the use or purpose of the article or if it affects the cost or quality of the article.” “Trade dress cannot, however, be both functional and purely aesthetic.” To prove a trade dress infringement, the Ninth Circuit requires that a plaintiff prove “(1) that its claimed dress is nonfunctional; (2) that its claimed dress serves a source-identifying role either because it is inherently distinctive or has acquired secondary meaning; and (3) that the defendant’s product or service creates a likelihood of consumer confusion.” Regarding the requirement of secondary meaning, “the trade dress of a product or service attains secondary meaning when the purchasing public associates the dress with a particular source.” One factor supporting a trade dress’s attainment of secondary meaning and the likelihood of consumer confusion is when it is deliberately copied.
The first question that must be answered is whether BAYC’s art is nonfunctional. The answer to this question is uncertain; it requires the opinion of consumers and revolves around whether the characteristics and elements of each BAYC NFT affect its value. This is a subjective question and one that would likely require a survey to answer. However, data does suggest that the price of each BAYC NFT is affected by the traits and design. If it is determined that the NFT’s design does affect its price, then it is a functional feature and not protected.
The second question is whether the design of each BAYC NFT has acquired secondary meaning. There are two arguments for this. The first is that it has attained secondary meaning because RR/BAYC and other NFT collections have copied or created unlicensed derivatives of BAYC NFTs. The second is that because so many NFT collections have outright copied or created unlicensed derivatives, BAYC has failed to protect its rights and is now a victim of genericide.
“Genericide occurs when the public appropriates a trademark and uses it as a generic name for particular types of goods or services irrespective of its source.” “Genericide can occur ‘as a result of a trademark owner’s failure to police the mark, resulting in widespread usage by competitors leading to a perception of genericness among the public, who sees many sellers using the same [mark.]”’ “The danger presented is that the public will mistakenly assume there is an association between the producers of the related goods. When it is more likely that the public will make such an association, less similarity in the marks is required for a finding of likelihood of confusion.”
This paper has already discussed how many other NFT collections beyond RR/BAYC are utilizing marks similar to or exactly like the BAYC marks. Beyond this, many of the collections are visually similar. Many collections are in the same art style; have the same features; and, some are the same image just reoriented. Visually, it is hard to tell some of these collections apart from each other and BAYC.
More so, there are individuals online advertising their services to copy, redesign, or create new images in the BAYC art style. This “throws a wrench in” BAYC’s claim that each BAYC NFT is “unique.” How can a project be “unique” when there are numerous copycats? The answer answer is what is not in Yuga Labs’s complaint. Throughout the complaint, Yuga Labs mentions how RR/BAYC utilizes the same images as BAYC NFTs. However, nowhere in the complaint does Yuga Labs mention claims of copyright or trade dress infringement. If Yuga Labs fails to defend the rights they assigned to BAYC owners, then all parties involved lose their rights.
The fact that BAYC is claiming trademark infringement, but not copyright infringement has dire consequences for their assignment of commercial rights to BAYC owners. This problem is made even worse because individuals are registering their NFT’s copyright in their name, despite not being assigned that right, and because of an owner’s recent trademark application of a, presumably, BAYC NFT.
These registrations are a new step between the NFT world and real-world ownership. The question, and issue, then become what happens to the registrations if the owners sell or accidentally transfer the NFT? The token itself is transferred, but not the registration. How can that be fair to the purchaser if they purchase an NFT thinking they bought all the rights associated with it, but it turns out the previous owner still maintains the copyright and or trademark?
This new legal dilemma is worse regarding trademarks. There, at the time of writing, is a pending application to register, presumably, BAYC #4440. The application is for a mark that “consists of an image of an ape wearing a cowboy hat, an earring, and a tank top.” If this application is approved and registered on the Principal Register, what does that mean for BAYC #5771; another image of an ape wearing a cowboy hat, an earring, and a tank top? Is the owner of BAYC #5771 now unable to trademark his NFT? What if the trademark application is to trademark an RR/BAYC or some other NFT collection’s rendition of BAYC # 4440? Could an individual who has held a similar appearing NFT longer later come along and claim trademark infringement?
This lack of enforcement of rights by BAYC has the potential to cause an implosion of the American copyright and trademark systems. The only way to avoid a massive copyright and trademark debacle is either for BAYC to begin heavily policing the copyright and trade dress of their products and protecting their customers’ rights or for the BAYC and related NFT collections to be deemed generic products.
Even though BAYC cannot, or would have difficulty, obtaining the identities of the users who created these infringing NFT collections due to only their anonymous wallet being publicly available, BAYC can still bring lawsuits against them. The issue, of course, would be serving the unknown defendant(s). However, two recent cases, one from a New York state court and another from the High Court of England, have authorized the service of process by NFTs. In both cases, the Plaintiffs minted an NFT of their complaint and summons and sent it to the unidentified defendants’ crypto wallet. Although these are two isolated cases, service of process by NFTs could enable Plaintiffs to sue and serve individuals attempting to hide behind their anonymity online.
Even if a court does not find that BAYC’s NFTs have fallen victim to genericide and that the numerous copycat collections support a finding that BAYC NFTs have developed secondary meaning, that still leaves the third question. The third question asks if there was consumer confusion. While question three will be discussed in more detail in section III (C)(4), Ripps could still argue the crypto evangelist message that all NFTs, by the very technology that empowers them, are inherently unique and distinct. This argument is based on the fact that every NFT can be traced back to its original creator.
To better understand this argument, it is helpful to compare and contrast the facts of the present case to those in Wal-Mart Stores v. Samara Brothers. In 1996, Wal-Mart contracted with one of its suppliers to produce children’s clothes and sent the supplier photos of Samara Brothers’ products to base their designs on. That same year, Wal-Mart sold and marketed their products which were very similar to Samara Brothers’ products except for a few modifications. The only distinguishable difference between the products was the tags inside the clothes denoting the manufacturer. There was consumer confusion when Samara Brothers were called asking why their products were being sold cheaper at Wal-Mart. The Supreme Court ruled that trade dress that acquires distinctiveness is protected.
The important analogy between Wal-Mart and Yuga Labs claims is that in Wal-Mart, the tags of the similar products denoted the different manufacturer and origin, but that did not impact the Court’s finding that Wal-Mart infringed on Samara Brothers’ trademark. Ripps argues that the metadata of RR/BAYC’s NFTs indicates that he is the creator of the NFT, not BAYC.
Every NFT contains a unique token ID (also referred to as an NFT’s “hash”.) The token ID can be entered on a blockchain explorer, like Etherscan.io for the Ethereum blockchain, and the entire ownership history of the NFT can be viewed, including the creator. However, it will only display the wallet address, a random assortment of letters and numbers, of the owners and creator. Unless the wallet owner has publicly declared their ownership of a wallet address, ownership of the wallet remains anonymous.
For example, take BAYC #3683. While the marketplace Opensea is kind enough to display the NFT’s transaction history on its website, a blockchain explorer can display the entire transaction history of the NFT. From there, it can be determined from who the current owner received the NFT and this chain of transactions can be traced back to BAYC’s wallet. The same can be done for RR/BAYC NFTs. Because, as Ripps argues, an NFT can be traced back to the original creator, it does not falsely designate the origin and is a distinct product. Another way of looking at this argument is that the NFT’s data functions similarly to a tag on a product or a chain of title at the Register of Deeds.
It should be noted that investigating the transaction history of an NFT is not easy like reading the information on a product tag. This difference between the two processes is exacerbated by the fact that reading a product tag is a physical process and easily accomplished by any consumer whereas the process of manually investigating the origin of an NFT requires computer skills, technical knowledge, and significant time.
Tying it all together is the final and most important question in a trademark infringement analysis: was there consumer confusion? All the Sleekcraft factors discussed above have been in an attempt to answer this question. However, the answer to the question of whether there was consumer confusion depends entirely on whether the court applies the Brookfield-GoTo.com or Brookfield-Network standard.
Generally, to prove a likelihood of consumer confusion, the plaintiff must provide “sufficient evidence to permit a rational trier of fact to find that confusion is probable, not merely possible.” Even if the plaintiff has their trademark registered on the Principal Register and their mark incontestable, they still must show a likelihood of confusion.
A court applying the Brookfield-GoTo.com standard is likely to find that RR/BAYC did cause consumer confusion. Such a court is likely to reach this conclusion by viewing all of the above-mentioned facts through a lens of forward confusion and by not considering Ryder Ripps’s intent not to confuse consumers.
“Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder.” “Evidence of a defendant’s intent to [or intent not to] confuse customers is not required for a finding of likelihood of confusion.”
Applying the Internet Troika factors, RR/BAYC’s marks are similar to BAYC’s. RR/BAYC uses a name very similar to BAYC; RR/BAYC’s logo is visually similar to BAYC’s; and, BAYC’s marks can be viewed as being protected. Also, because Ripps promoted RR/BAYC on his personal Twitter account; because other accounts claiming to be associated with RR/BAYC impersonated BAYC on Twitter; and, because RR/BAYC was listed on NFT marketplaces alongside BAYC, these acts can be seen as utilizing the same marketing channels as BAYC. Further, because RR/BAYC intentionally copied the images of BAYC NFTs, this allowed BAYC’s NFTs to acquire secondary meaning and become protected trade dress. All of these factors satisfy the Internet Troika and are thus sufficient to satisfy the Sleekcraft factors; thus, a court applying the Brookfield-GoTo.com standard is likely to find that RR/BAYC likely caused consumer confusion and infringed BAYC’s trademark.
However, a court applying the Brookfield-Network standard is unlikely to find that RR/BAYC likely causes consumer confusion. A court applying the second standard is likely to reach such a conclusion by looking beyond the two present parties and instead consider RR/BAYC and Ripps’s actions in light of the entire market.
The first step in this analysis is to look beyond the Internet Troika factors. This is because the Internet Troika provides too much rigidity, especially since “emerging technologies require a flexible approach.” Instead, a court should consider “whether the defendant[‘s] actual practices are likely to produce confusion in the minds of consumers about the origin of the goods in question.” In doing so, the court must reject the rule from GoTo.com and not consider unreasonable, imprudent, and inexperienced NFT consumers in their analysis. As such, “confusion on the part of a negligible number of consumers is insufficient for the trademark holder to prevail. Rather, a trademark holder must establish that an appreciable number of people will be confused as to the source of the product.” Further, “mere speculation is not evidence of consumer confusion regarding trademarks.” This is because “when the marketplace is replete with products using a particular trademarked symbol, it indicates not only the difficulty in avoiding its use but also, and directly, the likelihood that consumers will not be confused by its use”
The key facts that a court applying the Brookfield-Network standard are the lack of distinctiveness of BAYC’s logo; the numerous NFT collections utilizing BAYC’s marks; and, the numerous NFT collections selling copycat or derivative products. To overcome these facts, the Plaintiff will likely need to provide evidence that customers were actually confused. “Two sorts of evidence [that] are probative of actual confusion [is] evidence of actual instances of confusion and survey evidence.
Surveys can be helpful for a Plaintiff in proving trademark infringement. For a survey to be admitted into court, it must be conducted using a sizeable population; conducted by experts; and, conducted in accordance with professional principles. A survey can not only help a Plaintiff demonstrate previous confusion and a likelihood of future confusion, but can also demonstrate that Plaintiff’s marks are distinctive in the eyes of the public. As long as the survey relates to the issues in the lawsuit, a survey can strengthen a Plaintiff’s entire case if conducted properly.
Though, the most persuasive proof a Plaintiff can present is instances of actual confusion. The best place to look for this information would be on social media sites such as Twitter and Reddit. These are the forums consumers are most likely to discuss their purchases and reveal directly or inadvertently that they were confused. Though, the Plaintiff would need to collect an appreciable number of actual confusion instances.
Ultimately, the question of whether there is a likelihood of confusion depends on which standard the court utilizes. The Brookfield-GoTo.com standard is weighted in favor of the plaintiff because it strictly follows the Internet Troika factors and focuses exclusively on the present parties. The Brookfield-Network standard leans favorably for the Defendant in this case because it considers confusion in the market, not just between the present parties.
Regrettably, Yuga Labs was granted summary judgment by the District Court. In its ruling, the court made a series of findings that are detrimental to the internet and do not align with modern times.
Firstly, the judge found that BAYC’s unregistered trademarks were protected. Although this may be true, the judge failed to state the strength of BAYC’s marks and ignored the possibility of genericide. The judge adopted the Brookefield-GoTo.com standard and declared that since the marks and products in this case were identical, the first Sleekcraft factor, which is the strength of the mark, favored Yuga Labs.
Secondly, the court declined to rule on whether consumers were actually confused. Although Yuga Labs submitted evidence purportedly showing actual consumer confusion, the court ruled that such evidence is usually “unclear or insubstantial.” Though, the judge notes that this factor was not necessary to rule on because he found the other Sleekcraft factors weighed in favor of Yuga Labs.
However, the next two determinations by the Court ring like a dial-up tone from the days of GoTo.com. In step with the Brookefield-GoTo.com standard, the District Court found that NFT consumers are credulous and do not take the necessary steps to prevent being confused. This is despite NFT marketplaces like Opensea, verifying the NFT’s ownership history and collection it originated from and presenting it to the potential buyer in an easy-to-understand format.
The most harmful and outdated ruling by the Court was the finding that the internet and large social media sites are one marketing channel. In three sentences, the judge found that because RR/BAYC and BAYC both advertised on Twitter, they had similar marketing channels. Twitter, a platform hosting over 368.4 million users, larger than the United States’ population, is considered by this judge to be one marketing channel. The Twitter accounts noted in the complaint have an insignificant user following if they are even tied to Ripps or RR/BAYC. Even Ripps’s personal Twitter account does not have the same reach as BAYC’s. Despite this, the judge found this Sleekcraft factor supported Yuga Labs.
However, in a similar case with similar facts, decided around the same time as Yuga Labs v. Ryder Ripps, in the same federal district court, but by a different District Court judge, the outcome was the inverse. In Vida Enter. Corp. v. Angelina Swan Collection, Inc., Vida Enterprise Corporation sued Angelina Swan Collection for violating their trademarks on the words “ANGELINA” and “SWAN.” Vida argued that because both it and Angelina Swan Collection (“ASC”) marketed their products on Facebook, this would support a finding of similar marketing channels. However, the Facebook pages served two different audiences: Vida’s was oriented toward wholesale buyers while ASC’s advertised to retail consumers. Ultimately, the judge ruled that the potential overlap in marketing channels “is minimal, such that any overlap is unlikely to cause consumer confusion.” The Court in this case thus adopted the Brookfield-Network standard and found that large social media sites and the internet as a whole are not one marketing channel.
The same marketing channel analysis applied in Vida Enter. Corp. should have been applied in Yuga Labs. BAYC and Ripps’s Twitter pages serve two different functions like in Vida Enter. Corp. BAYC’s Twitter is oriented to promoting the BAYC collection and other collections by Yuga Labs. Ripps’s account is oriented to promoting his personal views and projects. Given Ripps’s hostility towards BAYC on Twitter, it is hard to imagine how any consumer could be confused and believe that he had a relationship with or was sponsored by Yuga Labs. Had the same marketing channel analysis applied in Vida Enter. Corp. been applied in Yuga Labs, the Court would have found similarly to the Vida Enter. Corp. Court in that the internet and large social media sites are not similar marketing channels.
Instead, the Yuga Labs court made a ruling that is harmful to the future of the internet. The Court failed to analyze the strength of BAYC’s marks in the totality of the market rather than its analysis in the case. The Court failed to consider the sophistication of consumers in this niche market and the availability of tools offered to assist credulous buyers in not being confused. Worst of all, the Court wrongly concluded that large social media sites and the internet as a whole are one marketing channel. This opinion is a pure Brookfield-GoTo.com standard based opinion that rings of the dialup tones from when GoTo.com was decided.
The Brookfield-GoTo.com and Brookfield-Network standards are two diverging legal analyses that can view the same facts in different ways. Both standards weigh the facts in light of the Sleekcraft factors differently and both yield different conclusions. When courts are faced with a trademark infringement case involving the internet, the legal standard they apply will have profound effect on the decision.
If the Brookfield-GoTo.com standard is applied, it will likely be akin to a new sheriff arriving in a wild west town. This new sheriff will enforce intellectual property rights with a heavy hand; those who infringe, copy or derive the work of others beware. It cares not about the conditions in the overall market; but only about the parties named in the complaint. Though, strict adherence to the Brookfield-GoTo.com rule could smother any new technology.
However, applying the Brookfield-GoTo.com standard would provide consistency and predictable judicial outcomes. The Internet Troika are easy factors to identify and weigh. This may enable parties to settle infringement claims more easily outside of court and discourage them from going to court when the outcome is formulaic. Though, it is the formulaic aspect of the Brookfield-GoTo.com standard that makes it less adaptable to changing technology.
On the other hand, Brookfield-Network is a less predictable standard but offers great flexibility for dealing with new technology. This approach seeks to better understand the technology and to create rules for it that reflect the technology’s purpose. However, the drawback of the Brookfield-Network standard is that it requires the court applying it to understand the technology; to look at the current and future market for the technology; and, to engage in more analysis than the three factor Internet Troika.
While courts may be hesitant to delve into every new technology or internet niche, the Brookfield-Network standard encourages innovation and entrepreneurship. However, given the heavy workload of our courts, the streamlined Brookfield-GoTo.com standard promotes judicial efficiency but at the cost of fully understanding the nuances of each case. To address these concerns, a compromise would be to keep the Internet Troika as the default analysis for internet trademark infringement cases, but allow parties to submit evidence about the use of the mark from the market as a whole, beyond just the present parties. For example, Defendants could demonstrate that other entities are also using the mark, while Plaintiffs could provide evidence of agreements with third parties highlighting the distinctiveness of the mark. By adopting such an approach, the court could reach a fair and just decision that does not unfairly harm any party.
Moreover, this current intra-circuit split within the Ninth Circuit is damaging to both the internet and the fairness of the courts. When judges have the discretion to apply different legal standards, the outcome of a case can be unpredictable, leaving the parties with little recourse. It is essential that the Ninth Circuit resolve this split before it stifles innovation and impedes the progress of technology. By doing so, the court will not only foster a more consistent and predictable legal landscape but will also encourage innovation and entrepreneurship.
 J.D. Candidate, North Carolina Central University School of Law, 2024; B.A., University of North Carolina at Chapel Hill Hussman School of Journalism and Media, 2021. Special thanks to my parents, Brian and Deborah Lanier, for their love and support, I never would have made it this far in life without them; to Professor Brenda Reddix-Smalls for sparking my interest in intellectual property law and for editing this article; and, to my friends, Dylan Martin, Olivia Martin, Dawson McDonald, and Wyatt McDonald, for listening to me rant about this topic and for their feedback. The views expressed in this Article are the author’s alone, and do not represent those of the above said persons or any other. A warning that this article contains discussion of Nazi iconography, hate speech, and racial discrimination.
 Sleekcraft, infra, note 254
 See, 1A Gilson on Trademarks § 5.02; The First Circuit utilizes the Pignons factors. Pignons S. A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 487 (1st Cir. 1981). The Second Circuit utilizes the Polaroid factors. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 493 (2d Cir. 1961). The Third Circuit utilizes the Lapp / Scott Paper factors. Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir. 1983). The Fourth Circuit utilizes the Pizzeria Uno factors. Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir. 1984). The Fifth Circuit utilizes the O’Neal factors. Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45-46 (5th Cir. 1975). The Sixth Circuit adopted the Ninth’s Circuit’s Sleekcraft factors in their Frisch factors. Frisch’s Rests., Inc. v. Elby’s Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir. 1982). The Seventh Circuit does not have a defined test for trademark infringement, but it is similar to other circuits’ tests. See, Sullivan v. CBS Corp., 385 F.3d 772, 776–77 (7th Cir. 2004); Helene Curtis Indus., Inc. v. Church & Dwight Co., 560 F.2d 1325 (7th Cir. 1977). The Eight Circuit utilizes the Squirtco factors. Squirtco v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir. 1980). The Tenth Circuit largely utilizes § 729 of the Restatement of Torts with some additions. Universal Money Centers, Inc. v. AT&T Co., 22 F.3d 1527, 1530 (10th Cir. 1994); see also Restatement of the Law, Torts § 729; Avrick v. Rockmont Envelope Co., 155 F.2d 568 (10th Cir. 1946) (adopting the Restatement factors). The Eleventh Circuit adopted the Fifth Circuit’s O’Neal factors. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as precedent decisions of the Fifth Circuit rendered prior to October 1, 1981). The Federal Circuit utilizes the du Pont factors. In re E. I. Du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973). The D.C. Circuit Court has not officially adopted a set of factors but have previously followed the Second Circuit’s Polaroid factors. See, Basile, S.P.A. v. Basile, 899 F.2d 35, 37 (D.C. Cir. 1990). Compare Sleekcraft, infra, note 254 to Pignons; Polaroid; Lapp; Pizzeria Uno; O’Neal; Frisch; Sullivan; Squirtco; Universal Money Centers; and, du Pont.
 The internet was invented in 1989 by British scientist Tim Berners-Lee while working at CERN. https://home.cern/science/computing/birth-web/short-history-web#:~:text=Where%20the%20Web%20was%20born,and%20institutes%20around%20the%20world.
 The value of physical goods sold over the internet has grown from $231 billion in 2012 to $871 billion in 2022; an average growth rate of 16% annually. https://www.cbre.com/insights/articles/omnichannel-what-is-the-share-of-e-commerce-in-overall-retail-sales#:~:text=Depending%20on%20sources%20and%20methodology,%25%20to%20more%20than%2020%25.
 See Brookefield, infra, note 253.
 See Brookefield, infra, note 253.
 See GoTo.com, infra, note 261.
 See Network Automation, infra, note 270.
 See, generally, Complaint, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022); Hailey Lennon, A landmark NFT lawsuit seeks to determine how creators, owners, and investors can protect their intellectual property and Monetize Assets Moving Forward, Forbes (2022), https://www.forbes.com/sites/haileylennon/2022/07/05/a-landmark-nft-lawsuit-seeks-to-determine-how-creators-owners-and-investors-can-protect-their-intellectual-property-and-monetize-assets-moving-forward/?sh=6facaf6361ec (last visited Nov 17, 2022).
 See generally, Complaint, Id.; see also, infra, Section II (A); infra, Section II (C)(1)
 See generally, Motion to Strike Compliant, Yuga Labs v. Ryder Ripps Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022); see also, infra, Section II (C)(2); infra, Section II (E).
 Megan E. Noh, et. al., GM! Time to Wake Up and Address Copyright and Other Legal Issues Impacting Visual Art NFTs, 45 Colum. J.L. & Arts 315, 316.
 Langston Thomas & Eric Beyer, NFT BLOCKCHAINS ABOUND. HERE’S A COMPLETE GUIDE TO THE BEST IN WEB3, NFT NOW (2022), https://nftnow.com/guides/complete-simple-guide-to-top-nft-blockchains/#:~:text=blockchains%20support%20NFTs-,Ethereum,for%20transactions%20without%20requiring%20intermediaries. (last visited Nov 17, 2022) (“Despite mounting competition, Ethereum remains the most popular NFT blockchain.”)
 1 International Computer Law § 1.17
 See Ursman Chohan, A History of Bitcoin, Critical Blockchain Research Initiative, 8 (2017) (discussing how Bitcoin was started.).
 Björn Segendorf, What is Bitcoin?, 2 Sveriges Riksbank Economic Review, 73 (2014) (“Bitcoin is a decentralised virtual currency scheme with bidirectional flow, and a cryptocurrency. It was devised to be independent of governments, banks and other institutions.”)
 See Id, at 74 (discussing how the Bitcoin Blockchain verifies the transfer).
 Martin Holovsky, UNHYPED COMPARISON OF BLOCKCHAIN PLATFORMS, MEDIUM (Jan. 25, 2022), https://medium.com/coinmonks/unhyped-comparison-of-blockchain-platforms-679e122947c1 (last visited Nov 17, 2022).
 See, generally, Jake Frankenfield, What is a cryptocurrency wallet?, Investopedia (2022), https://www.investopedia.com/terms/b/bitcoin-wallet.asp (last visited Sep 30, 2022).
 LCX Team, How to verify NFT authenticity, LCX (2022), https://www.lcx.com/how-to-verify-nft-authenticity (last visited Sep 30, 2022) (You utilize a blockchain explorer to verify previous ownership of an NFT.).
 1-2.4 Blockchain and Smart Contract Law P 2.4.09
 Yori Assia et al., Colored Coins whitepaper, eToro, 3 (2015), https://www.etoro.com/wp-content/uploads/2022/03/Colored-Coins-white-paper-Digital-Assets.pdf (last visited Oct 2, 2022) (discussing the goal of the project.)
 Id (listing potential uses for Colored Coins).
 Gary Kohn, NFTs and the Law, 44 Los Angeles Lawyer 18, 20 (2021).
 1-2.4 Blockchain and Smart Contract Law P 2.4.09 (discussing how blockchain mining validates transactions and add them to the ledger.)
 See, generally, Sumi Mudgil, How to mint an NFT (part 2/3 of NFT tutorial series), ethereum.org (2021), https://ethereum.org/en/developers/tutorials/how-to-mint-an-nft/ (last visited Sep 30, 2022).
 See, generally, Nicholas Rossolillo, How to mint an NFT: A step-by-step guide, The Motley Fool (2022), https://www.fool.com/investing/stock-market/market-sectors/financials/non-fungible-tokens/nft-minting/ (last visited Sep 30, 2022).
 See, generally, Mudgil, supra, note 33; Rossolillo, supra, note 34.
 See Mark Conrad, Non-Fungible Tokens, Sports, and Intellectual Property Law Issues: A Case Study Applying Copyright, Trademark, and Right of Publicity Law to a Non-Traditional Ownership Vehicle, 32 J. Legal Aspects Of Sport 132, 134 (2022) (discussing the uses of NFTs).
 Rebecca Carroll, The Latest Technology Challenging Copyright Law’s Relevance Within a Decentralized System, 32 Fordham Intell. Prop. Media & Ent. L.J. 979, 981 (2022)
 Web 3.0 is a catch-all term for a vision of the internet that is built on blockchain and where users own their digital data and assets. The exact meaning varies person to person but is centered around a decentralized internet in comparison to today’s internet which is centralized around the Amazon, Google, and Meta platforms. See, Bobby Allyn, People are talking about web3. is it the internet of the future or just a buzzword?, NPR (2021), https://www.npr.org/2021/11/21/1056988346/web3-internet-jargon-or-future-vision (last visited Nov 17, 2022) (“[Web 3.0 is] an umbrella term for disparate ideas all pointing in the direction of eliminating the big middlemen on the internet. In this new era, navigating the web no longer means logging onto the likes of Facebook, Google or Twitter.”); Thomas Stackpole, What is web3?, Harvard Business Review (2022), https://hbr.org/2022/05/what-is-web3 (last visited Nov 17, 2022) (“[Web 3.0] is a convenient shorthand for the project of rewiring how the web works, using blockchain to change how information is stored, shared, and owned. In theory, a blockchain-based web could shatter the monopolies on who controls information, who makes money, and even how networks and corporations work. Advocates argue that Web3 will create new economies, new classes of products, and new services online; that it will return democracy to the web; and that is going to define the next era of the internet.”); Gilad Edelman, The father of web3 wants you to trust less, Wired (2021), https://www.wired.com/story/web3-gavin-wood-interview/ (last visited Nov 17, 2022) (Gavin Wood, who coined the term “Web 3.0” and co-founded Ethereum, discussing how Web 3.0 will be about trusting governments and regulatory agencies less and demanding more truth and transparency from them); Sean Michael Kerner, What is web 3.0?, WhatIs.com (2022), https://www.techtarget.com/whatis/definition/Web-30#:~:text=Web%203.0%20(Web3)%20is%20the,providing%20website%20and%20application%20services (last visited Sep 30, 2022) (discussing what Web 3.0 is and how NFTs will impact it).
 Beyond the trademark infringement case instituted by Yuga Labs, Ryder Ripps has filed a countersuit against Yuga Labs seeking a declaratory judgement stating that Yuga Labs does not have copyright to the BAYC NFTs. See, Counterclaim, at 48-49, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Dec. 17, 2022.). However, Yuga Labs alleges that the copyright of the BAYC NFTs cannot be challenged because the copyright is not registered. See, Motion to Strike Counterclaims, at 23-24 Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jan. 18, 2023.). Whether Yuga Labs owns the copyright is an important question because the company licenses the NFT owner personal and commercial use of their NFT’s image. See, Terms and Conditions,Bored Ape Yacht Club https://boredapeyachtclub.com/#/terms (last visited Feb 06, 2023). The problem for Yuga Labs is that “[e]ach Bored Ape is unique and programmatically generated from over 170 possible traits;” in other words, computer generated. Home, Bored Ape Yacht Club, https://boredapeyachtclub.com/#/home (last visited Sep 30, 2022). The question of BAYC’s copyright comes in light of the Federal Circuit Court ruling that artificial intelligence and computer-generated images cannot be copyrighted as well as the U.S. Copyright Office retroactively denying copyright to such works. Thaler v. Vidal, 43 F.4th 1207, 1209 (Fed. Cir. 2022); see generally, Brian Cronin, AI-created comic could be deemed ineligible for copyright protection, CBR (2022), https://www.cbr.com/ai-comic-deemed-ineligible-copyright-protection/ (last visited Feb 12, 2023). Because the question of BAYC’s copyright is only tangentially related to trademark infringement, it will not be discussed in depth.
 Crypto evangelists are individuals who support blockchain technology by believing that it is a good investment and or an important technological development. The most famous crypto evangelist is billionaire investor and Dallas Mavericks owner Mark Cuban. See, generally, Bibhu Pattnaik, Mark Cuban envisions some of the biggest crypto opportunities ahead, Benzinga (2022), https://www.benzinga.com/markets/cryptocurrency/22/10/29110783/mark-cuban-talks-about-biggest-crypto-opportunities-here-are-they (last visited Feb 10, 2023); Cheyenne DeVon, Mark Cuban still believes in crypto despite FTX collapse-here’s why; CNBC (2022), https://www.cnbc.com/2022/11/18/mark-cuban-still-believes-in-crypto-despite-ftx-collapse.html (last visited Feb 10, 2023); Elaine Moore, Crypto evangelists keep the faith as prices fall; Financial Times (2022), https://www.ft.com/content/e15fdb19-9f5f-4fa9-b12c-fb2d1263ab16 (last visited Feb 10, 2023).
 See James Dale Davidson & William Rees-Mogg, The Sovereign Individual, 158 – 159 (1999) (outlining how an encryption algorithm, like cryptocurrency blockchains, would allow wealth to be transferred without governmental taxes); Parker Lewis, Bitcoin is a rally cry, Unchained Capital (2021), https://unchained.com/blog/bitcoin-is-a-rally-cry/ (last visited Oct 31, 2022) (“While bitcoin is valued for different reasons by different people, it consistently appeals to those that have identified the inherent level of freedom afforded by such a powerful tool, particularly in a world full of never-ending economic calamities.”); Max Borders, The progressive case for cryptocurrency, Foundation for Economic Education (2021), https://fee.org/articles/the-progressive-case-for-cryptocurrency/ (last visited Oct 31, 2022) (discussing how cryptocurrency and blockchain can improve economic mobility for low-income groups.); Max Borders, The conservative case for cryptocurrency, Foundation for Economic Education (2021), https://fee.org/articles/the-conservative-case-for-cryptocurrency/ (last visited Oct 31, 2022) (discussing how cryptocurrency and blockchain support Jeffersonian economics and eliminate the need for a central bank.)
 Joshua Fairfield, Tokenized: The Law of Non-Fungible Tokens and Unique Digital Property, 97 Ind. L.J. 1261, 1289-1290, (2022) (“Law, then, was something that cryptoevangelists expected to wither away, with digital wallets replacing banks and programs replacing contracts. This is a common theme among technologists, who do not have a sense of the history of law. With the internet, government power was supposed to wane. It did not. Copyright was purportedly dead with Napster. It was not. Virtual worlds were supposed to be free of real-world law. They were not. And likewise, smart contracts will not replace contract law, nor will oracles and code replace lawyers, judges, and juries. Providing strong legal analogies to what has gone before serves to put property tokens in the right relation with the reasoning of courts to date and gives courts a place to look when considering how to resolve disputes involving litigants who use a new technology to act in entirely recognizable ways”).
 Id. at 1267 (“The expansion of intellectual property rights online helped tame rampant piracy early in the internet’s development, but it now offers an inadequate foundation as NFTs and digital uniqueness enter the scene.”).
See Gary Gensler, Prepared Remarks of Gary Gensler on Crypto Markets Penn Law Capital Markets Association Annual Conference, U.S. Securities and Exchange Comission (2022), https://www.sec.gov/news/speech/gensler-remarks-crypto-markets-040422 (last visited Oct 27, 2022). (discussing how crypto currencies and NFTs are currently treated as outside normal securities laws.); Sunny J. Kumar et al., The NFT Collection: A Brave NFT World – A Regulatory Review of NFTs (Part 2), XII The National Law Review (2022), https://www.natlawreview.com/article/nft-collection-brave-nft-world-regulatory-review-nfts-part-2 (last visited Oct 27, 2022).
 See, generally, The regulatory considerations of nfts in the United States, Cointelegraph (2023), https://cointelegraph.com/cryptocurrency-regulation-for-beginners/the-regulatory-considerations-of-nfts-in-the-united-states (last visited Feb 12, 2023). The Federal Trade Commission (FTC) has limited authority over NFTs; the FTC only has authority if the NFT is involved in “[m]isleading or false NFT advertisements, terms of service, or IP and copyright agreements—such as those misrepresenting the transfer of ownership of copyright.” Kristen Busch, Non-Fungible Tokens (NFTs), Congressional Research Service, 12-13 (2022), https://crsreports.congress.gov/product/pdf/R/R47189 (last visited Feb 12, 2023); see generally, 15 U.S.C. 45. Because NFTs, such as BAYC, can collect royalties from secondary sales, NFTs could be considered securities and fall under the jurisdiction of the Securities and Exchange Commission (SEC). Eva Su, Digital Assets and SEC Regulation, Congressional Research Service, 20 (2021), https://crsreports.congress.gov/product/pdf/R/R46208 (last visited Feb 12, 2023); see also Lisa Gibbons, How does bored ape yacht club (BAYC) make money?, Benzinga (2022), https://www.benzinga.com/money/how-does-bored-ape-yacht-club-bayc-make-money (last visited Feb 12, 2023). While Professor Brian L. Frye believes that NFTs should be securities, the SEC has not declared them to be yet. Brian Frye, NFTs are securities and it’s great, CoinDesk (2022), https://www.coindesk.com/consensus-magazine/2022/12/28/nfts-are-securities-and-its-great/ (last visited Feb 12, 2023); Eva Su, Digital Assets and SEC Regulation, Congressional Research Service, 20 (2021), https://crsreports.congress.gov/product/pdf/R/R46208 (last visited Feb 12, 2023). The U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a rule in 2011 that defined a money transmission service to be anything that accepts and transmits currency, funds or “other value that substitutes for currency … by any means.” 31 C.F.R. § 1010.100. By that definition, NFTs could be considered a money transmission service. Many states have similar laws; some even directly regulating cryptocurrencies, but none mention NFTs. See, Cyrus Vance et al., State by state cryptocurrency laws and regulations, Bloomberg Law (2023), https://pro.bloomberglaw.com/brief/cryptocurrency-laws-and-regulations-by-state/ (last visited Feb 12, 2023) (summarizing and citing each states’ laws regarding the regulation of cryptocurrencies and NFTs). New Jersey is set to vote on a bill that would require all individuals and businesses in the state who issue cryptocurrency or mint NFTs to register for a license with the state. N.J. S1756 (3)(A), (2022), available at https://www.njleg.state.nj.us/bill-search/2022/S1756/bill-text?f=S2000&n=1756_R1; see also Taylor Scott, How New Jersey’s potential NFT regulation can set poor precedent, Bitcoinist (2023), https://bitcoinist.com/new-jerseys-nft-regulation-poor-precedent/ (last visited Feb 12, 2023). This and above are contradictory to the crypto evangelist message. See, Davidson, supra, note 41.
 See Eileen Kinsella, The U.S. Supreme Court will decide whether Andy Warhol violated a photographer’s copyright by using her image of prince without permission, Artnet News (2022), https://news.artnet.com/art-world/us-supreme-court-agrees-take-copyright-case-warhol-2091075 (last visited Sep 30, 2022) (discussing the history of the controversy).
 See, Transcript of Oral Argument at 3, Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, et al., No. 21-869 (U.S. Oct. 12, 2022) https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-869_g314.pdf (“Both courts below agreed and Goldsmith doesn’t dispute that Warhol’s Prince Series can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith’s photograph. The question in this case is whether that different meaning or message should play a role, any role, in the fair use analysis.”); see, generally, Ronald Mann, Justices debate whether Warhol image is “fair use” of photograph of prince, SCOTUSblog (2022), https://www.scotusblog.com/2022/10/justices-debate-whether-warhol-image-is-fair-use-of-photograph-of-prince/ (last visited Nov 17, 2022).
 See, generally, Dorian Batycka, To criticize ‘excessive’ copyright protection, a law professor minted nfts of a Warhol work that’s now the subject of a Supreme Court case, Artnet News (2022), https://news.artnet.com/art-world/warhol-nft-brian-frye-2143449 (last visited Sep 30, 2022).
 See Brian Frye, How to Sell NFTs Without Really Trying, 13 Harv. J. of Sports & Ent. Law 113, 131 (2022) (discussing his project of selling the Brooklyn Bridge via NFT).
 See, generally, Gabriel Cohen, For you, half price, The New York Times (2005), https://www.nytimes.com/2005/11/27/nyregion/thecity/for-you-half-price.html (last visited Sep 30, 2022) (discussing the history of the con artists who falsely sold the Brooklyn bridge over history).
 Frye, supra, note 52; See also Brian L. Frye, Brooklyn Bridge, Mintable, https://mintable.app/collectibles/item/Brooklyn-Bridge-I-have-a-bridge-to-sell-you/EDju7z5Kuhh0M-o [https://perma.cc/RN8U-37FC] (last visited Dec. 17, 2021); Brian L. Frye (@brianlfrye), Twitter, (June 1, 2021, 2:27 PM), https://twitter.com/brianlfrye/status/1399794706486280194 [https://perma.cc/8LQ6-XGFK].
 Id. at 118
 Brian Frye, How to Sell NFTs Without Really Trying, 13 Harv. J. of Sports & Ent. Law 113, 134-5 (2022) (“NFTs aren’t just meaningless data. While NFTs have no formal legal connection to the works they represent, the perception of a relationship is critical to the value of an NFT. Nothing is stopping you from creating an NFT of anything you like, whether or not it belongs to you. After all, I created an NFT of the Brooklyn Bridge, which I didn’t own, any more than George C. Parker did. But the NFT market looks askance at people creating NFTs of works they didn’t create or otherwise control”).
 See, Transcript of Oral Argument, supra, note 48.
 Brian Frye, THE ART OF THE TOKEN, 5 Stan J. Blockchain L. & Pol’y 238, 260 (“1. If a copyright infringement claim exists, who is the copyright owner? Doubleday hired Andy Warhol to illustrate Amy Vanderbilt’s Complete Cookbook. Are the drawings Warhol created for Doubleday works made for hire? 2. Does cutting a picture out of a book, gluing it to a card, and selling it constitute copyright infringement? 3. If a work copies an original element of a copyrighted work, does reproducing the work infringe the copied work? What if an image of a particular copy of a work is reproduced for the purpose of selling that particular copy? 4. Does creating an NFT of a work necessarily implicate copyright ownership of the work? What if the NFT represents a work that incorporates original elements copied from another work? 5. If an NFT represents ownership of a unique copy of a work that incorporates a unique copy of another work protected by copyright, does using an image of the work represented by the NFT in order to sell the NFT implicate the copyright in the copied work? 6. If an NFT representing ownership of a unique copy of a work is burned in order to exchange the NFT for the copy, can the persistence of the webpage documenting the existence of the NFT implicate copyright?”)
 Gary Symons, Feature report: Bored apes lawsuit may set precedent for IP protection in nfts, The Licensing Letter (2022), https://www.thelicensingletter.com/feature-report-bored-apes-lawsuit-may-set-precedent-for-ip-protection-in-nfts/ (last visited Sep 30, 2022) (discussing the challenges of intellectual property protection with NFTs).
 Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal.)
 Yuga Labs was founded in February 2021 by four individuals who go by the pseudonyms “Gordon Goner” (later revealed that his real name is Wylie Aronow), “Gargamel” (later revealed that his real name is Greg Solano), “Emperor Tomato Ketchup,” and “Sass.” The company started several NFT projects including “The Bored Ape Yacht Club,” “Mutant Ape Yacht Club,” and “Bored Ape Kennel Club.” Recently, Yuga Labs has acquired the companies behind other popular NFT collections including “CryptoPunks” and “MeeBits.” Yuga Labs is a Web 3.0 company that aims to reinvent what real-world utility for NFTs look like and advocates for a decentralized Web 3.0. See, generally, Home, Yuga Labs, https://www.yuga.com/ (last visited Nov 15, 2022); Yuga Labs (@YugaLabs), Twitter, (Jan 3, 2022, 3:27 PM) https://twitter.com/yugalabs/status/1478100695404449804?lang=en: Eric James Beyer, YUGA LABS: THE NFT COMPANY TAKING OVER THE METAVERSE NFT NOW (2022), https://nftnow.com/guides/yuga-labs-an-overview-of-the-nft-company-taking-over-the-metaverse/#:~:text=What%20is%20Yuga%20Labs%3F,10%2C000%20unique%20Bored%20Ape%20NFTs. (last visited Nov 15, 2022).
 Ryder Ripps is a conceptual artist best known for his 2015 exhibit at Postmasters Gallery in New York City titled “HO.” Beyond his art, Ripps is the Creative Director of OKFocus, a digital marketing and design agency. He has created recognizable work for numerous companies and celebrities including Marvel, James Blake, Soylent, Bruno Mars, Nike, Travis Scott, Pornhub, and Kanye West. See, generally, Ryder Ripps [WORKS] (@ig.portfolio), Instagram, https://www.instagram.com/ig.portfolio/?hl=en; Home, OkFocus, http://okfoc.us/ (last visited Nov 15, 2022); Ryder Ripps, SHOWstudio, https://www.showstudio.com/contributors/ryder_ripps (last visited Nov 15, 2022); Shanti Escalante-De Mattei, The art world’s digital troll is determined to take down bored Ape Yacht Club’s $4 Billion Empire, ART News (2022), https://www.artnews.com/list/art-news/news/bored-ape-yacht-club-lawsuit-ryder-ripps-1234638475/the-consequences-of-being-early/ (last visited Nov 15, 2022).
 Complaint, at ¶ 1, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022.)
 Brian Frye, How to Sell NFTs Without Really Trying, 13 Harv. J. of Sports & Ent. Law 113, 116 (2022) (“But the undisputed leaders of the NFT marketplace are the CryptoPunks and Bored Ape Yacht Club collections, examples of which sell for over a million dollars each”)
 See, generally, Sam Dunn, The all-star owners of the Bored Ape Yacht Club, Boardroom (2022), https://boardroom.tv/bored-ape-nft-celebrity-owners/ (last visited Sep 30, 2022).
 Daniel Van Boom, Bored ape yacht club nfts explained, CNET (2022), https://www.cnet.com/culture/internet/bored-ape-yacht-club-nfts-explained/ (last visited Sep 30, 2022) (“It took 12 hours for all 10,000 to sell out at a price of $190. . . . Right now, the cheapest you can buy one for is $150,000”).
 Complaint, at ¶ 23-30, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022.)
 Id, at ¶ 31
 Motion to Strike Compliant, 10, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022); See also Chen, Adrian (July 8, 2014). Ryder Ripps: An Artist of the Internet. The New York Times. p. E6.
 See, generally, Michael Solomon, 30 under 30 2016: Art & Style, Forbes (2016), https://www.forbes.com/30-under-30-2016/art-style/#3df3a4205512 (last visited Sep 30, 2022).
 See, generally, D Creahan, Ryder Ripps: “ho” at postmasters through February 28th, 2015, Art Observed (2015), http://artobserved.com/2015/02/new-york-ryder-ripps-ho-at-postmasters-through-february-28th-2015/ (last visited Sep 30, 2022).
 Emma Specter, Who is Ryder Ripps, conceptual artist and Kanye’s DM buddy?, Garage (2018), https://garage.vice.com/en_us/article/8x7nwx/kanye-west-ryder-ripps (last visited Sep 30, 2022).
 Rhizome (@rhizome), Twitter (Nov. 11, 2014, 3:26 PM), https://twitter.com/rhizome/status/532268125291823105?s=20&t=zVDwHyhvmdoSJPkfsYieuw
 CryptoVantage Staff, Top 10 most expensive nfts of all time, CryptoVantage (2022), https://www.cryptovantage.com/news/beeple-cryptopunks-and-tweets-the-top-10-most-expensive-nfts/ (last visited Sep 30, 2022).
 The DMCA was passed by Congress in 1998; the goal of the act was to “(1) establish protections for online service providers in certain situations if their users engage in copyright infringement, including by creating the notice-and-takedown system, which allows copyright owners to inform online service providers about infringing material so it can be taken down; (2) encourage copyright owners to give greater access to their works in digital formats by providing them with legal protections against unauthorized access to their works; and (3) mak[e] it unlawful to provide false copyright management information (for example, names of authors and copyright owners, titles of works) or to remove or alter that type of information in certain circumstances.” See, The Digital Millennium Copyright Act, U.S. Copyright Office, https://www.copyright.gov/dmca/ (last visited Feb 13, 2023). In effect regarding Ripps’s CryptoPunk#3100 were section 512 and 1202 of the DMCA. Section 1202 requires websites that host user content to accurately display information regarding the content’s ownership; if a work is infringing on another’s copyright, the website is required to remove the content. See, 17 U.S.C. 1202. However, section 1202 is only triggered when the true copyright holder provides notice to the infringing website that they are hosting infringing material and provide them time to remove the infringing content in exchange for the website not incurring liability for damages. See, 17 U.S.C. 512. On July 1, 2022, Larva Labs sent a DMCA takedown notice to Foundation, the NFT marketplace where Ripps’s CryptoPunk#3100 was being sold. Daniel Kuhn, Cryptopunks get punked, Yahoo News (2021), https://www.yahoo.com/video/cryptopunks-punked-181112751.html (last visited Feb 13, 2023). Ripps then sent a counter notice to Foundation stating that his mint of CryptoPunk#3100 was fair use. Id. Foundation sided with Ripps and did not remove his NFT. Id.; see also, Ryder Ripps, Larva Labs LLC. takedown notice email, Foundation (2021), https://foundation.app/@ryder_ripps/foundation/55151 (last visited Sep 30, 2022) (An NFT copy of the DMCA Complaint sent to Ripps).
 Ripps, RR/BAYC
 Ryder Ripps is the most famous defendant in this case, but he is one of four defendants. The other defendants to this case include Jeremy Cahen, Ryan Hickman, and Thomas Lehman. See, generally, Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed June. 6, 2022); Compliant, Yuga Labs v. Hickman, 2:23-cv-111 (D. Nev. Filed Jan. 20, 2023); and, Complaint, Yuga Labs v. Lehman, 1:23-cv-85 (N.D.N.Y. Filed Jan. 20, 2023).
 Motion to Strike Compliant, 11-4, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022) (Ripps claiming that “Yuga Systematically Embedded Racist Messages and Imagery in Its Trademarks and Products”); See; See also, generally, Ryder Ripps, Bored Ape Yacht Club is Racist and Contains Nazi Dog Whistles, https://gordongoner.com/ (last visited Oct 1, 2022).
 See Motion to Strike Compliant, 19-20, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022) (“Mr. Ripps Created The RR/BAYC Project In Furtherance of His Constitutional Right of Free Speech”).
 1 Gilson on Trademarks § 1.06 citing Preserving History: Trademark Timeline, 82 TMR 1021, 1022 (1992).
 Edward S. Rogers, Some Historical Matter Concerning Trade-Marks, 9 Mich. L. Rev. 29 (1910), reprinted at 62 TMR 239, 240 (1972).
 Id, at 247.
 1 Gilson on Trademarks § 1.06
 See, generally, Sandforth’s Case, Cory’s Entries, BL MS. Hargrave 123, fo. 168 (1584); Keith M. Stolte, How Early Did Anglo-American Trademark Law Begin? An Answer to Schechter’s Conundrum, 8 Fordham Intell. Prop. Media & Ent. L.J. 505, 529 – 538 (1997) (discussing the Sandforth complaint and decision).
 1 Gilson on Trademarks § 1.06 (“For some twelve years he used the mark ‘J.G.,’ with the design of a ‘tucker’s handle,’ possibly a tool of the clothier’s trade, on quality cloth that he sold at various locations in England, Wales, and ‘beyond the seas.’ During this time he built up a profitable business and enviable reputation among merchants, who could tell from the trademark, without even inspecting the goods, that they were of high quality.”)
 Id. (“He marked his ‘deceitful, insufficient and unmerchantable’ cloth with the same trademark and sold it to merchants familiar with the plaintiff’s goods and his trademark.”)
 Id. (“One can only speculate as to the training or resources available to the lawyer in Elizabethan England who represented the plaintiff. Nevertheless, whether or not most of the facts he alleged could be proved, his instincts were definitely on target. He saw fit to allege all the ingredients of a modern case of intentional trademark infringement, including priority of use, development of goodwill and reputation, wrongful intent, actual confusion, and damage through injury to reputation.
 Rogers, 62 TMR at 252
 1 Gilson on Trademarks § 1.06
 Rogers, 62 TMR at 251-52
 16 Stat. 210.
 U.S. Const. Art. I, § 8, Cl 8 (aka the Copyright and Patent Clause) provides that Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
 Trade-Mark Cases, 100 U.S. 82, 91 (1879) (“The ordinary trade-mark has no necessary relation to invention or discovery. The trade-mark recognized by the common law is generally the growth of a considerable period of use, rather than a sudden invention. It is often the result of accident rather than design, and when under the act of Congress it is sought to establish it by registration, neither originality, invention, discovery, science, nor art is in any way essential to the right conferred by that act.”)
 See, 21 Stat. 502.
 U.S. Const. Art. I, Sec. 8, Cl. 3.
 Lanham Act preamble, appearing before 15 U.S.C. § 1051.
 Codified as 15 U.S.C. § 1125
 15 U.S.C. § 1127.
 1 Gilson on Trademarks § 1.02
 1 Gilson on Trademarks § 2.08
 See, 1A Gilson on Trademarks § 4.01 (“Trademarks and service marks used in interstate commerce can be registered in the United States Patent and Trademark Office. . . . Trademarks may also be protected in court actions in the absence of federal trademark registration, under the Lanham Act’s Section 43(a) or under state statutory or common law.”)
 See, generally, 1A Gilson on Trademarks § 3.05
 See, Id. (“A principal register registration communicates nationwide constructive notice of the registrant’s claim on the mark, constitutes prima facie evidence of the exclusive right to use the mark in interstate commerce, is prima facie evidence of the mark’s validity and ownership, can enable the right to use the mark to become incontestable under certain circumstances.”)
 See, 1A Gilson on Trademarks § 4.01 (“Trademarks may also be protected in court actions in the absence of federal trademark registration, under the Lanham Act’s Section 43(a) or under state statutory or common law.”)
 See, generally, 1A Gilson on Trademarks § 3.02.
 See, Copyright and the Public Domain § 12.02 (“Trademark protection is carefully circumscribed. Unlike the case with a copyright, copying a trademark is not always a violation of the trademark owner’s rights.”)
 See, 1 Gilson on Trademarks § 2B.04 (“The privilege accorded by the First Amendment is somewhat analogous to the “fair use” doctrine in copyright law. Just as a parodist or satirist may use some aspects of a copyrighted work without infringing the copyright, an author may make some fair use of the names and likenesses of real individuals without violating their rights of publicity. Similar to the references to another party’s trademark that are allowed under the Lanham Act, such as in a comparative advertisement, so too can a reporter, artist or biographer refer to a celebrity name or incorporate an image.”)
 MCLE Intellectual Property Practice § 7.11.1
 Matthew Sag, The Pre-History of Fair Use, 76 BROOK. LAW REV. 1371, 1375-76 (2011). (finding that abridging books constituted a new creation and did not infringe on the original author’s work).
 Id. at 1377 (“What is the significance of Folsom v. Marsh? Justice Story’s decision is often celebrated as the origin of the fair use doctrine in the United States. Indeed, many elements of the decision are discernible in the current statutory formulation of the doctrine.” However, Folsom v. Marsh has also come to be viewed as a significant expansion of the rights of copyright owners.”)
 17 U.S.C.S. § 107
 4 Nimmer on Copyright § 13.05
 See, 17 U.S.C.S. § 107
 U.S. Const. Amend. 1
 3 Gilson on Trademarks § 13.24 (“Individuals and corporations may use the First Amendment as a shield from statutes, regulations and court actions like the issuance of an injunction based on a Lanham Act claim.”)
 Id. (“However, not all types of speech are treated equally under the Constitution and the protection afforded the use of a trademark will vary with its context and purpose.”)
 3 Gilson on Trademarks § 13.24
 See, Id. (“If the defendant is not using the challenged trademark in connection with goods or services in a manner that causes likely confusion, it is not liable for trademark infringement.”)
 See, Intellectual Property Law (LJP) § 10.04 (“The defendant does not bear a burden of disproving likelihood of confusion. But a showing of likely or actual confusion may be relevant to whether the defendant has made a fair use. A strong showing of confusion, for example, would tend to show both that the defendant acted in bad faith and that the defendant did not use the mark in its descriptive sense, both of which would weigh against fair use.”)
 “For trademark purposes, a parody is a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.” 3 Business Torts § 28.08
 See, 1A Gilson on Trademarks § 5.15 (discussing indirect parody and satire).
 See, Id. (“Some courts appear less likely to enjoin a humorist’s use of a mark if it pokes fun at the mark or mark owner, rather than a different topic. . . . Courts may discount the parody factor if the parody is not directly poking fun or criticizing the mark or mark owner.”)
 See, 3 Gilson on Trademarks § 13.24 (“[I]f the use of a mark is an integral part of a parody, artistic work or political message, an alleged infringer may defend its use of another’s mark with the protection of the First Amendment, even if the use of the mark is potentially confusing.”)
 See Motion to Strike Compliant, 9, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022) (“For example, Yuga’s “BA YC logo” imitates the Nazi Totenkopf emblem for the Schutzstaffel (SS), which was the Nazi organization primarily responsible for the Holocaust.”).
 Totenkopf translates to “skull and crossbones.” Totenkopf, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/german-english/totenkopf (last visited Oct 27, 2022).
 Wolfmann, German SS uniform. Peaked visor cap with skull emblem (totenkopf). Wikimedia Commons (2019), https://commons.wikimedia.org/wiki/File:German_SS_uniform._Peaked_visor_cap_with_skull_emblem_(Totenkopf)._Norwegian_Armed_Forces_Museum_(Forsvarsmuseet)_Oslo,_Norway_2019-03-31_DSC01645.jpg (last visited Oct 27, 2022).
 Helfmann, Totenkopf ring, Wikimiedia Commons (2010), https://commons.wikimedia.org/wiki/File:Totenkopfring.jpg (last visited Oct 27, 2022); see also Chris McNab, Hitler’s Elite: The SS 1939-45, 100 (2013).
 SS Division Totenkopf, Wikimedia Commons (2008), https://commons.wikimedia.org/wiki/File:3._SS_Division_Totenkopf.png (last visited Oct 27, 2022).
 SS head, Graham’s Nazi Germany Third Reich covers, http://www.nazi-germany-third-reich-covers.com/sshead.jpg (last visited Oct 27, 2022).
 See, RYDER RIPPS, BORED APE YACHT CLUB AND TOTENKOPF SKULL OVERLAY GORDON GONER, https://gordongoner.com/YUGA-LABS-BORED-APE-YACHT-CLUB-NAZI-TOTENKOMPF-SKULL.jpg (last visited Oct 27, 2022).
 See, infra, Part III.C.1 (Similarity of the Marks)
 See Motion to Strike Compliant, 9, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022). A “dog whistle” is a “a coded message communicated through words or phrases commonly understood by a particular group of people, but not by others.” What’s the political meaning of ‘dog whistle’?, Merriam-Webster (2017), https://www.merriam-webster.com/words-at-play/dog-whistle-political-meaning (last visited Feb 19, 2023).
 Saul Friedländer, Nazi Germany and the Jews / The Years of Extermination: 1939-1945, 346-47 (2007).
 2-6th Cavalry Commando – New Guinea – Beer, Wikimedia Commons (2007), https://commons.wikimedia.org/wiki/file:2-6th_cavalry_commando_-_new_guinea_-_beer.jpg (last visited oct 27, 2022).
 Odznaka dywizjonu huzarów śmierci wz. 1920 – replika, Wikimedia Commons (2009), https://commons.wikimedia.org/wiki/File:Odznaka_Dywizjonu_Huzar%C3%B3w_%C5%9Amierci_wz._1920_-_replika.jpg (last visited Oct 27, 2022).
 17th Lancers – cap badge, original, antique, Wikimedia Commons (2013), https://en.wikipedia.org/wiki/File:17th_Lancers_-_cap_badge,_original,_antique.jpg (last visited Oct 27, 2022). The 17th Lancer Brigade is immortalized in the poem “Charge of the Light Brigade; see Alfred Tennyson, The Charge of the Light Brigade, Poetry Foundation (2017), https://www.poetryfoundation.org/poems/45319/the-charge-of-the-light-brigade (last visited Oct 27, 2022). See also, Battle of Balaclava, British Battles, https://www.britishbattles.com/crimean-war/battle-of-balaclava/ (last visited Oct 27, 2022).
 Flag of Edward England, Wikimedia Commons (2006), https://en.wikipedia.org/wiki/File:Flag_of_Edward_England.svg (last visited Oct 27, 2022).
 Matt Wille, Bored Ape Yacht Club Finally Responds to Neo-Nazism Accusations, Input (2022), https://www.inputmag.com/culture/bored-ape-yacht-club-nazism-racism-claims-yuga-labs-ryder-ripps (last visited Oct 27, 2022).
 “The disparaging comparison or likening of a member of a racial or ethnic minority group to an ape or monkey.” Simianization, Dictionary.com, https://www.dictionary.com/browse/simianization (last visited Oct 27, 2022).
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *13 (C.D. Cal. Filed Aug. 15, 2022.)
 See The Punch Cartoon That Depicted the Young Ireland Party as a Gorilla, The Irish Times (2017), https://www.irishtimes.com/resizer/2DgB4V2l4aejOuF3DihFSIAXUE0=/1600×0/filters:format(jpg):quality(70)/cloudfront-eu-central-1.images.arcpublishing.com/irishtimes/2T3TGXXV42XXY2SI7UM2MNJKLU.jpg (last visited Oct 27, 2022); see also Seamas O’Reilly, Apes, Psychos, Alcos: How British Cartoonists Depict the Irish, The Irish Times (2017), https://www.irishtimes.com/culture/art-and-design/apes-psychos-alcos-how-british-cartoonists-depict-the-irish-1.3149409 (last visited Oct 27, 2022).
 See FIGURE 1, Artifacts Journal (2012), https://artifactsjournal.missouri.edu/wp-content/uploads/sites/18/2013/06/Hannah-Miles-Figure-1.jpg (last visited Oct 27, 2022). ; See also Hannah Miles, WWII Propaganda: the Influence of Racism, Artifacts Journal (2012), https://artifactsjournal.missouri.edu/2012/03/wwii-propaganda-the-influence-of-racism/ (last visited Oct 27, 2022).
 See Gorilla, Lawrence Aeschler (2014), https://lawrenceweschler.com/static/images/uploads/Gorilla.png (last visited Oct 27, 2022); see also “Destroy This Mad Brute” The African Roots of World War I, LAWRENCE WESCHLER (2014), https://lawrenceweschler.com/library/article/destroy-this-mad-brute-the-african-roots-of-world-war-i (last visited Oct 27, 2022).
 Wulf D. Hund, Charles W. Mills & Silvia Sebastiani, Simianization: Apes, Gender, Class, and Race, 10-11 (2016).
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *14 (C.D. Cal. Filed Aug. 15, 2022.); quoting Jeff Wilser, THE BORED APE FOUNDERS HAVEN’T YET JOINED THE YACHT CLUB, COINDESK (2021), https://www.coindesk.com/business/2021/09/01/the-bored-apes-founders-havent-yet-joined-the-yacht-club/ (last visited Oct 27, 2022).
 Bored Ape Yacht Club #3721, OPENSEA, https://opensea.io/assets/ethereum/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d/3721 (last visited Oct 27, 2022).
 Bored Ape Yacht Club #6281, OPENSEA, https://opensea.io/assets/ethereum/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d/6281 (last visited Oct 27, 2022).
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *29 (C.D. Cal. Filed Aug. 15, 2022.)
 Id, at 13.
 See Bored ape yacht club Hip Hop Trait, Opensea, https://opensea.io/collection/boredapeyachtclub?search%5BsortAscending%5D=true&search%5BsortBy%5D=UNIT_PRICE&search%5BstringTraits%5D%5B0%5D%5Bname%5D=Clothes&search%5BstringTraits%5D%5B0%5D%5Bvalues%5D%5B0%5D=Hip+Hop (last visited Oct 27, 2022).
 See Bored ape yacht club Sushi Chef Headband Trait, Opensea, https://opensea.io/collection/boredapeyachtclub?search%5BsortAscending%5D=true&search%5BsortBy%5D=UNIT_PRICE&search%5BstringTraits%5D%5B0%5D%5Bname%5D=Hat&search%5BstringTraits%5D%5B0%5D%5Bvalues%5D%5B0%5D=Sushi+Chef+Headband (last visited Oct 27, 2022).
 Matt Wille, Bored Ape Yacht Club Finally Responds to Neo-Nazism Accusations, Input (2022), https://www.inputmag.com/culture/bored-ape-yacht-club-nazism-racism-claims-yuga-labs-ryder-ripps (last visited Oct 27, 2022).
 Snoop Dogg owns BAYC#6723; see Bored Ape Yacht Club #6723, Opensea, https://opensea.io/assets/ethereum/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d/6723 (last visited Oct 27, 2022).
 Eminem owns BAY#9055; see Bored Ape Yacht Club #9055, Opensea, https://opensea.io/assets/ethereum/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d/9055 (last visited Oct 27, 2022).
 See Complaint, at ¶ 60-8, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022) (“ Yuga quietly embedded its company’s trademarks, artwork, and products with these coded “dog whistles,” drawing from neo-Nazi culture and racist communities”).
 See Id, at ¶ 58-9.
 See Id, at ¶ 44-5.
 Cameron Ciletti, RR/BAYC delisted from OpenSea, Lucky Trader (2022), https://luckytrader.com/nft/rrbayc/news/rr-bayc-delisted-from-open-sea (last visited Oct 1, 2022); See also Ryder Ripps (@ryder_ripps), Instagram, https://www.instagram.com/p/CfDWwJnOr0d/?hl=en
 Motion to Strike Compliant, 18, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
 Id, at 19
 Jaak Poldma, Dragged to the U.S. courts (part 2): Avoiding personal jurisdiction as a Non-U.S. blockchain company, Orrick Herrington & Sutcliffe LLP, https://blogs.orrick.com/blockchain/dragged-to-the-u-s-courts-part-2-avoiding-personal-jurisdiction-as-a-non-u-s-blockchain-company/ (last visited Oct 1, 2022); See generally Alibaba Group Holdings Limited v. Alibabacoin Foundation, No. 18-CV-2897 (S.D.N.Y.) and In re Tezos Securities Litigation, No. 17-CV-06779-RS (N.D. Cal.)
 Paul Wackerow, Proof-of-stake (POS), ethereum.org (2022), https://ethereum.org/en/developers/docs/consensus-mechanisms/pos/ (last visited Oct 1, 2022); See also Sam Kessler, Ethereum merge explained: What investors should know about the shift to proof-of-stake CoinDesk (2022), https://www.coindesk.com/learn/ethereum-merge-explained-what-investors-should-know-about-the-shift-to-proof-of-stake/ (last visited Oct 1, 2022).
 _Chechmate (@_Checkmatey), Twitter (Sep. 15, 2022, 4:00 AM), https://twitter.com/_Checkmatey_/status/1570321741603557379
 Best Owie, Ethereum merge puts spotlight on potential centralization issues, Bitcoinist.com (2022), https://bitcoinist.com/ethereum-merge-puts-spotlight-on-potential-centralization-issues/ (last visited Oct 1, 2022).
 Complaint, U.S. Securities and Exchange Commission v. Ian Balina, 1:22-cv-00950, ¶ 69 (W.D. Tex Filed Sep. 19, 2022.)
 Sander Lutz, Sec claims all of Ethereum falls under US jurisdiction, Decrypt (2022), https://decrypt.co/110107/sec-ethereum-us-jurisdiction (last visited Oct 1, 2022).
 In re Tezos Sec. Litig., No. 17-cv-06779-RS, 2018 U.S. Dist. LEXIS 157247, at *25 (N.D. Cal. Aug. 7, 2018)
 See, Lutz, supra, note 189.
 Brayden Lindrea, Congress will likely decide the fate of crypto jurisdiction, Cointelegraph (2022), https://cointelegraph.com/news/congress-will-likely-decide-the-fate-of-crypto-jurisdiction-lummis-staffer (last visited Oct 1, 2022).
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *18 (C.D. Cal. Filed Aug. 15, 2022.)
 US Const. Amend. 1
 Matal v. Tam, 137 S. Ct. 1744, 1747 (2017)
 George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996)
 “SLAPP” stands for “strategic lawsuit against public participation”
 Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1155 (9th Cir. 2021) (internal brackets omitted).
 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003) (quoting Cal. Civ. Proc. Code § 425.16(b)(1))
 See, e.g., Makaeff v. Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, J., concurring).
 Rogers v. Grimaldi, 875 F.2d 994, 996 (2d Cir. 1989)
 Gordon v. Drape Creative, Inc., 897 F.3d 1184, 1186 (9th Cir. 2018)
 Rogers, 875 F.2d at 996
 Gordon v. Drape Creative, Inc., 897 F.3d 1184, 1186 (9th Cir. 2018)
 Twentieth Century Fox TV v. Empire Distribution, Inc., 875 F.3d 1192, 1195 (9th Cir. 2017) (“Under the two prongs of the Rogers test, the Lanham Act should not be applied to expressive works unless the use of the trademark or other identifying material has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the trademark or other identifying material explicitly misleads as to the source or the content of the work.”)
 See, infra, Part III.C.4
 See Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *14 (C.D. Cal. Filed Aug. 15, 2022.) (The purpose of RR/BAYC is “(1) to bring attention to Yuga’s use of racist and neo-Nazi messages and imagery, (2) to expose Yuga’s use of unwitting celebrities and popular brands to disseminate offensive material, (3) to create social pressure demanding that Yuga take responsibility for its actions, and (4) to educate the public about the technical nature and utility of NFTs.”)
 Opposition to Defendants’ Motion to Strike and Dismiss, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *14 (C.D. Cal. Filed October 17, 2022.) (“This is commercial infringement; not art.”)
 Id., at *16
 Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 412 (S.D.N.Y. 2002)
 Nature Labs, LLC, 221 F. Supp. 2d at 421.
 See, generally, Complaint, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022.); Opposition to Defendants’ Motion to Strike and Dismiss, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed October 17, 2022.)
 McCarthy § 31:155; See also Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 421 (S.D.N.Y. 2002)
 To determine the likelihood of consumer confusion, the court will apply the Sleekcraft test. See, Sleekcraft, infra, note 254and accompanying text
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *25 (C.D. Cal. Filed Aug. 15, 2022.)
 4 McCarthy § 23.11
 New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 304 (9th Cir. 1992)
 4 McCarthy § 23.11
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *26 (C.D. Cal. Filed Aug. 15, 2022.)
 Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1180 (9th Cir. 2010)
 Id., (“We’ve never adopted such a draconian definition of necessity, and we decline to do so here.”
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *26-27 (C.D. Cal. Filed Aug. 15, 2022.)
 See Id.
 Complaint, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, ¶33 (C.D. Cal. Filed Jun. 24, 2022.)
 Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 752 (9th Cir. 1978)
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571, (1994) (“The fact that a publication is commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.”)
 See, infra, Part III.C.3.d
 Campbell, 510 U.S., at 571 (“When a commercial use amounts to mere duplication of the entirety of an original, it clearly supersedes the objects of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur. But when, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.”)
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *27 (C.D. Cal. Filed Aug. 15, 2022.)
 Motion to Strike Compliant, 30, Yuga Labs v. Ryder Ripss Et Al., (C.D. Cal. Filed Aug. 15, 2022)
(“The RR/BAYC project is a satirical artistic work protected under the First Amendment right of free speech.”)
 See 4 McCarthy § 23.11 (citing Tabari, 610 F.3d at 1182-83); the likelihood of confusion is discussed later in Part III.C.4.
 Mattel, Inc. v. MCA Records, Inc., No. CV 97-6791-WMB, 1998 U.S. Dist. LEXIS 7310, at *1 (C.D. Cal. Feb. 17, 1998)
 Motion to Strike Compliant, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *19 (C.D. Cal. Filed Aug. 15, 2022.) (“Collectors commissioned RR/BAYC NFTs as an act of protest against Yuga and to form a community that advances Mr. Ripps’s messages regarding Yuga’s use of racist dog whistles.”)
 Complaint, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355, *14 (C.D. Cal. Filed Jun. 24, 2022.) (showing how the BAYC and RR/BAYC NFTs are identical.)
 See Walt Disney Prods., 581 F.2d at 752
 Id., at 8 (citing New Kids, 971 F.2d at 308).
 Id. (citing Toyota Motor Sales, 610 F.3d at 1181).
 Id. at 10.
 ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’ ANTI-SLAPP MOTION TO STRIKE AND MOTION TO DISMISS, 7, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Dec. 16, 2022).
 Id. (citing Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184, 1190 (9th Cir. 2017)) (“[E]ven if a defendant engages in free speech activity that is relevant to a claim, that does not necessarily mean such activity is the basis for the claim”).
 Id. at 11 (citing Renewable Res. Coal., Inc. v. Pebble Mines Corp., 218 Cal. App. 4th 384 (2013)) (explaining that “the gravamen of an action is the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.”)
 See, generally, Yuga Labs v. Ryder Ripss Et Al., No. 22-56199 (9th Cir.)
 15 U.S.C.S. § 1125
 Zamfir v. Casperlabs, LLC, 528 F. Supp. 3d 1136, 1140 (S.D. Cal. 2021): see also 4 Milgrim on Trade Secrets § 17.05
 Brookfield Communs., Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1041 (9th Cir. 1999)
 AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 345 (9th Cir. 1979); see also 1A Gilson on Trademarks § 5.02
 E. & J. Gallo Winery v. Gallo Cattle Co., 955 F.2d 1327, 1338, 21 U.S.P.Q.2d 1824 (9th Cir. 1992). See also Thane Int’l v. Trek Bicycle Corp., 305 F.3d 894, 901, 64 U.S.P.Q.2d 1564 (9th Cir. 2002) (“Unless properly used, this long list of factors has the potential to befuddle the inquiry.”)
 Interstellar Starship Services, Ltd. v. Epix, Inc., 304 F.3d 936, 942, 64 U.S.P.Q.2d 1514 (9th Cir. 2002); see also GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205
 Brookfield, 174 F.3d, 1041.
 Id. at 1042
 Brookfield, 174 F.3d, at 1042.
 Id., at 1041; See also 1A Gilson on Trademarks § 5.05
 GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1203 (9th Cir. 2000)
 Id., at 1211
 Id., at 1209
 3 Business Torts § 28.04 (2022)
 See Brian Frye, How to Sell NFTs Without Really Trying, 13 Harv. J. of Sports & Ent. Law 113, 131 (2022).
 Restatement (Third) of Unfair Competition, § 21.
 See Stork Rest., Inc. v. Sahati, 166 F.2d 348 (9th Cir. 1948)
 Network Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137, 1142 (9th Cir. 2011)
 Network Automation, Inc., 638 F.3d,at 1143-44.
 Id. at 1154.
 See 3 Business Torts § 28.04 (2022)
 Network Automation, 638 F.3d, at 1148; See also Brookfield, 174 F.3d, at 1041.
 See Complaint, at ¶ 33, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022) and Motion to Strike Compliant, 23, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
 See, GoTo.com, Inc. v. Walt Disney Co., 202 F.3d at 1209.
 Motion to Strike Compliant, 9, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
 Complaint, at ¶ 38, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022) ; Compare Motion to Strike Compliant, 24, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
See, U.S. Trademark Application Serial No. 97125958 (filed Nov. 15, 2021); U.S. Trademark Application Serial No. 97126372 (filed Nov. 15, 2021); U.S. Trademark Application Serial No. 90739977 (filed May 27, 2021); U.S. Trademark Application Serial No. 90739987 (filed May 27, 2021).
 B&B Hardware, Inc. v. Hargis Indus., 575 U.S. 138, 138 (2015)
 Id.; See also 15 U.S.C. § 1057(b) and 15 U.S.C.S. § 1072
 Network Automation, 638 F.3d, at 1141.
 Elliott v. Google, Inc., 860 F.3d 1151, 1155 (9th Cir. 2017)
 Entrepreneur Media v. Smith, 279 F.3d 1135, 1138 (9th Cir. 2002)
 Rudolph Int’l, Inc. v. Realys, Inc., 482 F.3d 1195, 1197-98 (9th Cir. 2007)
 Entrepreneur Media, 279 F.3d, at 1138. “A suggestive mark is one for which a consumer must use imagination or any type of multistage reasoning to understand the mark’s significance, the mark does not describe the product’s features, but suggests them.”
 Id.; See also 3 Business Torts § 28.01
 Lyle Daly, What is bored ape yacht club?, The Motley Fool (2022), https://www.fool.com/investing/stock-market/market-sectors/financials/non-fungible-tokens/bored-ape-yacht-club/ (last visited Oct 1, 2022). “A Bored Ape is also a membership card to the online Yacht Club and has members-only benefits.”
 Sophie Haigney, What makes bored ape nfts so desirable?, The Wall Street Journal (2022), https://www.wsj.com/articles/bored-ape-nfts-so-expensive-11645709606 (last visited Oct 1, 2022).
 Flori Blanca, Ape in meaning in NFT, Spiel Times (2022), https://www.spieltimes.com/nft/ape-in-meaning-in-nft/ (last visited Oct 1, 2022) (“a term to describe people who rush into purchasing a new NFT or currency without conducting thorough research or study. It all started with the ‘apes together, strong’ meme.”); See also Hiten Shah (@hnshah), Twitter (Sep. 1, 2021, 1:02 AM), https://twitter.com/hnshah/status/1432931834292158470?lang=en. (“a person buys an NFT or token soon after launch without much research.”)
 See generally Docket, Yuga Labs v. Bored Ape, 91278161 (USPTO.)
 See Bored Ape Sneakerhead Collection, Sneaker Match Tees, https://sneakermatchtees.com/Sneaker-Tees-category/bored-ape-sneakerhead/ (last visited Oct 2, 2022); Bored Ape NFT Graphic Tee, Aeropostale, https://www.aeropostale.com/bored-ape-nft-graphic-tee/60069086.html (last visited Oct 2, 2022); and BAYC™ #7285 Gender-Neutral T-Shirt for Adults, Old Navy, https://oldnavy.gap.com/browse/product.do?pid=529848#pdp-page-content (last visited Oct 2, 2022).
 33D4A4, Bored ape bros OpenSea (2021), https://opensea.io/collection/bored-ape-bros (last visited Oct 2, 2022); Bored ape anime club, OpenSea, https://opensea.io/collection/bored-ape-anime-club (last visited Oct 5, 2022); Bored ape galaxy club X nike edition, OpenSea (2022), https://opensea.io/collection/bored-ape-galaxy-club-x-nlke-edition (last visited Oct 5, 2022); Bored ape legendary club [CocaCola edition], OpenSea (2022), https://opensea.io/collection/bored-ape-legendary-club-cocacola-edition (last visited Oct 2, 2022); Bored ape pixie club, OpenSea (2022), https://opensea.io/collection/bored-ape-pixie-club (last visited Oct 2, 2022); Bored ape punks club, Magic Eden, https://magiceden.io/marketplace/boredapepunksclub (last visited Oct 5, 2022); Bored ape skull not club, OpenSea (2021), https://opensea.io/collection/boredapeskullnotclub (last visited Oct 2, 2022); Bored ape social clubs, OpenSea (2021), https://opensea.io/collection/boringapesocialclub (last visited Oct 2, 2022); Bored ape token club BATC, OpenSea (2021), https://opensea.io/collection/bored-ape-token (last visited Oct 5, 2022); Bored Ape Yacht Club [Legendary Edition], Looks Rare, https://looksrare.org/collections/0x3Ab9b8bcC97DB111BF14b04eBd4c08dce94CFD5b?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022); Bored Ape Yacht Club X COLORPENCIL, Looks Rare, https://looksrare.org/collections/0xeb341Fc2771f5057C72f2860233Ea0e60EdDD7C9?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022); Bored apes by famous artists, OpenSea (2022), https://opensea.io/collection/bored-apes-by-famous-artists (last visited Oct 2, 2022); BoredApeFrens, Bored ape frens OpenSea (2021), https://opensea.io/collection/boredapefrens (last visited Oct 2, 2022); Bored-Ape-Solana-Club, Bored ape solana club OpenSea (2022), https://opensea.io/collection/bored-ape-solana-club (last visited Oct 2, 2022); Fake bored ape club, OpenSea (2022), https://opensea.io/collection/fake-bored-ape-club-official (last visited Oct 2, 2022); Ghost bored ape yacht club, OpenSea (2021), https://opensea.io/collection/ghost-bored-ape-yacht-club (last visited Oct 2, 2022); Graffiti bored ape yacht club, OpenSea (2021), https://opensea.io/collection/graffiti-bored-ape-yacht-club (last visited Oct 2, 2022); JRS bored ape yacht club crew, OpenSea (2021), https://opensea.io/collection/boredapeyachtclub-1 (last visited Oct 2, 2022); lnwtrue.eth, Bored Ape Yacht Club Looks Rare, https://looksrare.org/collections/0x99A6163b390a2b06B99B93a1829b55C5793d0fdf?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022); So Bored Ape Yacht Club, Looks Rare, https://looksrare.org/collections/0xeD5125c5cB2A75d43fC8662B1b9EE7fE6528AC07?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022); and, Space bored ape yacht club, OpenSea (2021), https://opensea.io/collection/spaceboredape (last visited Oct 2, 2022).
 Yacht Club Definition & meaning, Merriam-Webster, https://www.merriam-webster.com/dictionary/yacht%20club (last visited Oct 1, 2022).
 Yacht Club, Urban Dictionary, https://www.urbandictionary.com/define.php?term=yacht+club (last visited Oct 1, 2022) (“Where all the bros get together in the bathroom to have an orgy and pray.”)
 See Flori Blanca, Ape in meaning in NFT and Yacht Club, Urban Dictionary
 Chris Katje, Bored ape yacht club hard seltzer coming: Here is who’s behind new drink, Benzinga (2022), https://www.benzinga.com/markets/cryptocurrency/22/08/28466101/bored-ape-yacht-club-hard-seltzer-coming-here-is-whos-behind-new-drink (last visited Oct 1, 2022). and Happy dad banana hard seltzer, Seltzer Nation (2022), https://www.seltzernation.com/happy-dad-hard-seltzer-releases-new-limited-edition-banana-flavor-with-an-nft-twist/ (last visited Oct 1, 2022). “A hard seltzer featuring a Bored Ape Yacht Club NFT hit stores Thursday. Here’s a look at the Bored Ape used and the company behind the product. . . . Bored Ape Yacht Club is one of the most well-known NFT collections and one of the most valuable. Owners of the NFTs are able to license out their Apes or use them to build a brand. Happy Dad is using the Ape they own in the hard seltzer category that it entered in September 2021.”
 Bored Ape Yacht Club, Redbubble (2022), https://www.redbubble.com/people/NFT0001/shop#profile (last visited Oct 2, 2022).
 AliceInCryptoland, Etsy, https://www.etsy.com/shop/AliceInCryptoland?ref=simple-shop-header-name&listing_id=1273994896 (last visited Oct 2, 2022); Bored Ape Yacht Club Collection, Maddie’s, https://maddies.co/collection/bored-ape-yacht-club/ (last visited Oct 2, 2022); BoxCollider, Ape Skull Sticker Redbubble, https://www.redbubble.com/i/sticker/Ape-Skull-by-BoxCollider/29013347.EJUG5 (last visited Oct 2, 2022); Cryptographix, Etsy, https://www.etsy.com/shop/Cryptographix?ref=simple-shop-header-name&listing_id=1250811177 (last visited Oct 2, 2022); Hilary Mayo, Modern Attire Co Etsy, https://www.etsy.com/shop/ModernAttireCo?ref=simple-shop-header-name&listing_id=1207732085 (last visited Oct 2, 2022); and, InvestmenTees, Etsy, https://www.etsy.com/shop/InvestmenTees?ref=simple-shop-header-name&listing_id=1242017008 (last visited Oct 2, 2022).
 Wal-Mart Stores v. Samara Bros., 529 U.S. 205, 216 (2000). (“We hold that, in an action for infringement of unregistered [trademark] under § 43(a) of the Lanham Act, a product’s [mark] is distinctive, and therefore protectible, only upon a showing of secondary meaning.”)
 Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1353 (9th Cir. 1985); See also 1A Gilson on Trademarks § 5.11.
 U.S. Trademark Application Serial No. 97125958 (filed Nov. 15, 2021)
 Elliott, 860 F.3d, at 1154.
 Freecycle Network, Inc. v. Oey, 505 F.3d 898, 905 (9th Cir. 2007) quoting 2 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 12:1 (2007)
 Elliott, 860 F.3d, 1154.
 bazzier, Vector Stock, https://www.vectorstock.com/royalty-free-vector/ape-skull-vector-1319535 (last visited Oct 2, 2022); BoxCollider, Ape Skull Sticker Redbubble, https://www.redbubble.com/i/sticker/Ape-Skull-by-BoxCollider/29013347.EJUG5 (last visited Oct 2, 2022); freeject.net, Adobe Stock, https://stock.adobe.com/images/gorilla-skull-hand-drawn-line-art-vector-illustration/313626800 (last visited Oct 2, 2022); Heavy Psych Sounds Records, APE SKULL – Ape Skull REPRESS Bandcamp (2022), https://heavypsychsoundsrecords.bandcamp.com/album/ape-skull-ape-skull-repress (last visited Oct 2, 2022); jkazanceva, Outline and colour illustration gorilla monkey skull, hand-drawn sketch isolated on white background. 123RF, https://www.123rf.com/photo_143475830_outline-and-colour-illustration-gorilla-monkey-skull-handdrawn-sketch-isolated-on-white-background.html (last visited Oct 2, 2022); Nelson Gibbins, Behance (2018), https://www.behance.net/gallery/22597157/Ape-Farm-%28Tee%29 (last visited Oct 2, 2022); RomanArt, Gorilla monkey skull vector image Vector Stock, https://www.vectorstock.com/royalty-free-vector/gorilla-monkey-skull-vector-24281592 (last visited Oct 2, 2022); and, saripuddin., Freepik, https://www.freepik.com/premium-vector/ape-skull-logo-illustration-design_28345556.htm#query=gorilla%20skull&position=45&from_view=keyword (last visited Oct 2, 2022).
 Bayctron, APENFT, https://apenft.io/collections/BAYCTron (last visited Oct 2, 2022); Bored ape galaxy club X nlke edition, OpenSea (2022), https://opensea.io/collection/bored-ape-galaxy-club-x-nlke-edition (last visited Oct 5, 2022); Bored ape legendary club [CocaCola edition], OpenSea (2022), https://opensea.io/collection/bored-ape-legendary-club-cocacola-edition (last visited Oct 2, 2022); Bored ape skull not club, OpenSea (2021), https://opensea.io/collection/boredapeskullnotclub (last visited Oct 2, 2022); Ghost bored ape yacht club, OpenSea (2021), https://opensea.io/collection/ghost-bored-ape-yacht-club (last visited Oct 2, 2022); Graffiti bored ape yacht club, OpenSea (2021), https://opensea.io/collection/graffiti-bored-ape-yacht-club (last visited Oct 2, 2022); GrandpaApeCountryClub, Grandpa Ape Country Club OpenSea (2022), https://opensea.io/collection/grandpaapecountryclub (last visited Oct 2, 2022); Rekt Ape Cope Club, OpenSea (2022), https://opensea.io/collection/rektapecopeclub (last visited Oct 2, 2022); Reversed Ape Yatch Club, Opensea (2021), https://opensea.io/collection/reversed-ape-yatch-club (last visited Oct 5, 2022); Skeleton Ape Society, OpenSea (2022), https://opensea.io/collection/skeleton-ape-society (last visited Oct 2, 2022); Skeleton Apes, OpenSea (2022), https://opensea.io/collection/skeletonapes (last visited Oct 2, 2022); Space bored ape yacht club, OpenSea (2021), https://opensea.io/collection/spaceboredape (last visited Oct 2, 2022); and, VAPES – Vertically Flipped Apes, Opensea (2021), https://opensea.io/collection/vapes-vertically-flipped-apes (last visited Oct 5, 2022).
 See Elliott, 860 F.3d, at 1155.
 Entrepreneur Media, 279 F.3d, at 1138; see also 3 Business Torts § 28.01.
 Motion to Strike Compliant, 9, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
 Matal v. Tam, 137 S. Ct. 1744, 1747 (2017); See also 1 Gilson on Trademarks § 3.08
 Interstellar Starship Services, Ltd. v. Epix, Inc., 304 F.3d 936, 942, 64 U.S.P.Q.2d 1514 (9th Cir. 2002)
 Complaint, at ¶ 59, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022.)
 Id, at ¶ 42-5.
 Complaint, at ¶ 42, Yuga Labs v. Ryder Ripss Et Al.
 See Complaint, at ¶ 42, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022.)
 John P. Mello, A third of US social media users creating fake accounts, TechNewsWorld (2022), https://www.technewsworld.com/story/a-third-of-us-social-media-users-creating-fake-accounts-176987.html (last visited Oct 1, 2022).
 1 Cyber Risks, Social Media and Insurance § 4.05 (2022)
 Complaint, at ¶ 43, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022.)
 Ryder Ripps (@ryder_ripps), Twitter (Jun. 3, 2022, 12:01 AM), https://twitter.com/ryder_ripps/status/1532573276240683008
 Ryder Ripps (@ryder_ripps), Twitter (Jul. 14, 2022, 9:48 PM), https://twitter.com/ryder_ripps/status/1547759874678788103 (@warrbo: “hmm yeah but exactly, this isn’t about brilliant minds, isn’t the goal of trademark law to protect naive consumers to know the source of their goods? so the standard is yes expecting illiteracy from consumers and protecting against their confusion by similar image marks, right?” @ryder_ripps: “did u buy an rrbayc thinking it was a bayc? if not i think u should respectfully stfu”).
 Ryder Ripps (@ryder_ripps), Twitter (Jul. 14, 2022, 9:48 PM), https://twitter.com/ryder_ripps/status/1547759874678788103
 See, generally, Caryn Mandabach Prods. v. Sadlers Brewhouse, No. CV 20-10220-CBM-(JEMx), 2021 U.S. Dist. LEXIS 116713, (C.D. Cal. May 19, 2021)
 Id. at *11; Quoting Network Automation, 638 F.3d at 1151.
 Motion to Strike Compliant, 23, Yuga Labs v. Ryder Ripss Et Al.; Complaint, at ¶ 43, Yuga Labs v. Ryder Ripss Et Al.
 Death Tobacco, Inc. v. Black Death USA, No. CV 92-6437-WMB, 1993 U.S. Dist. LEXIS 20646, at *1 (C.D. Cal. June 30, 1993); See also 3 Business Torts § 28.04
 Thane Int’l v. Trek Bicycle Corp., 305 F.3d 894, 898 (9th Cir. 2002)
 Id., at 899
 Thane Int’l, 305 F.3d, at 900.
 Thane Int’l, 305 F.3d, at 909.
 Id. at 908 and 913
 See Motion to Strike Compliant, 19, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
 Florian Zandt & Felix Richter, NFT marketplaces remain a niche phenomenon in crypto, Statista (2022), https://www.statista.com/chart/27412/estimated-worldwide-revenue-of-cryptocurrency-nft-platforms/ (last visited Oct 1, 2022).
 What is burning an NFT? A complete guide and explanation, NFTexplained.info (2022), https://nftexplained.info/what-is-burning-an-nft-a-complete-guide-and-explanation/ (last visited Oct 1, 2022).
 The ingenious way Elvis Presley even made money off his haters, CBCnews (2018), https://www.cbc.ca/radio/undertheinfluence/the-ingenious-way-elvis-presley-even-made-money-off-his-haters-1.4739772 (last visited Oct 1, 2022).
 Thane Int’l, 305 F.3d, at 909
 Ryder Ripps, RR/BAYC
 Motion to Strike Compliant, 14, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
 Id, at 15
 Clicks Billiards, Inc. v. Sixshooters Inc., 251 F.3d 1252, 1256 (9th Cir. 2001)
 Clicks Billiards, Inc., 251 F.3d, at 1256.
 Pedro Herrera, How to value bored apes yacht club nfts, DappRadar (2022), https://dappradar.com/blog/how-to-value-bored-apes-yacht-club-nfts (last visited Oct 1, 2022).
 See Clicks Billiards, Inc., 251 F.3d, at 1256.
 Elliott, 860 F.3d, 1154.
 Freecycle Network, 505 F.3d, at 905; quoting 2 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 12:1 (2007)
 Death Tobacco, Inc., No. CV 92-6437-WMB, 1993 U.S. Dist. LEXIS 20646, at *1; See also 1A Gilson on Trademarks § 5.05
 0xApes-Official, 0xApes trilogy OpenSea (2022), https://opensea.io/collection/0xapes-trilogy (last visited Oct 2, 2022); 33D4A4, Bored ape bros OpenSea (2021), https://opensea.io/collection/bored-ape-bros (last visited Oct 2, 2022); Bayctron, APENFT, https://apenft.io/collections/BAYCTron (last visited Oct 2, 2022); Bored ape anime club, OpenSea, https://opensea.io/collection/bored-ape-anime-club (last visited Oct 5, 2022); Bored ape galaxy club X nlke edition, OpenSea (2022), https://opensea.io/collection/bored-ape-galaxy-club-x-nlke-edition (last visited Oct 5, 2022); Bored ape legendary club [CocaCola edition], OpenSea (2022), https://opensea.io/collection/bored-ape-legendary-club-cocacola-edition (last visited Oct 2, 2022); Bored ape pixie club, OpenSea (2022), https://opensea.io/collection/bored-ape-pixie-club (last visited Oct 2, 2022); Bored ape punks club, Magic Eden, https://magiceden.io/marketplace/boredapepunksclub (last visited Oct 5, 2022); Bored ape skull not club, OpenSea (2021), https://opensea.io/collection/boredapeskullnotclub (last visited Oct 2, 2022); Bored ape social clubs, OpenSea (2021), https://opensea.io/collection/boringapesocialclub (last visited Oct 2, 2022); Bored ape token club BATC, OpenSea (2021), https://opensea.io/collection/bored-ape-token (last visited Oct 5, 2022); Bored Ape Yacht Club [Legendary Edition], Looks Rare, https://looksrare.org/collections/0x3Ab9b8bcC97DB111BF14b04eBd4c08dce94CFD5b?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022); Bored Ape Yacht Club X COLORPENCIL, Looks Rare, https://looksrare.org/collections/0xeb341Fc2771f5057C72f2860233Ea0e60EdDD7C9?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022); Bored apes by famous artists, OpenSea (2022), https://opensea.io/collection/bored-apes-by-famous-artists (last visited Oct 2, 2022); Bored Phyayc, Opensea (2021), https://opensea.io/collection/bored-phaycs (last visited Oct 2, 2022); BoredApeFrens, Bored ape frens OpenSea (2021), https://opensea.io/collection/boredapefrens (last visited Oct 2, 2022); Bored-Ape-Solana-Club, Bored ape solana club OpenSea (2022), https://opensea.io/collection/bored-ape-solana-club (last visited Oct 2, 2022); cakedapescreator, Caked apes official OpenSea (2022), https://opensea.io/collection/cakedapesofficial (last visited Oct 2, 2022); Dope_Ape_Club_Community, Dopeapeclub OpenSea (2022), https://opensea.io/collection/dopeapeclub-1 (last visited Oct 2, 2022); Fake bored ape club, OpenSea (2022), https://opensea.io/collection/fake-bored-ape-club-official (last visited Oct 2, 2022); Ghost bored ape yacht club, OpenSea (2021), https://opensea.io/collection/ghost-bored-ape-yacht-club (last visited Oct 2, 2022); Graffiti bored ape yacht club, OpenSea (2021), https://opensea.io/collection/graffiti-bored-ape-yacht-club (last visited Oct 2, 2022); GrandpaApeCountryClub, Grandpa Ape Country Club OpenSea (2022), https://opensea.io/collection/grandpaapecountryclub (last visited Oct 2, 2022); Habibi Ape Club , OpenSea (2022), https://opensea.io/collection/habibiapeclub (last visited Oct 2, 2022); JRS bored ape yacht club crew, OpenSea (2021), https://opensea.io/collection/boredapeyachtclub-1 (last visited Oct 2, 2022); Lady Ape Club, OpenSea (2022), https://opensea.io/collection/ladyapeclub5668 (last visited Oct 2, 2022); lnwtrue.eth, Bored Ape Yacht Club Looks Rare, https://looksrare.org/collections/0x99A6163b390a2b06B99B93a1829b55C5793d0fdf?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022).; LoserApeKevin, Loser Ape School Club OpenSea (2022), https://opensea.io/collection/loserapeschoolclub (last visited Oct 2, 2022); OkayApesClub, Okay apes club OpenSea (2021), https://opensea.io/collection/okay-apes-club (last visited Oct 2, 2022); Rekt Ape Cope Club, OpenSea (2022), https://opensea.io/collection/rektapecopeclub (last visited Oct 2, 2022); Reversed Ape Yatch Club, Opensea (2021), https://opensea.io/collection/reversed-ape-yatch-club (last visited Oct 5, 2022); Skeleton Ape Society, OpenSea (2022), https://opensea.io/collection/skeleton-ape-society (last visited Oct 2, 2022); Skeleton Apes, OpenSea (2022), https://opensea.io/collection/skeletonapes (last visited Oct 2, 2022); Sketchyapes, OpenSea (2022), https://opensea.io/collection/sketchyapes (last visited Oct 2, 2022); So Bored Ape Yacht Club, Looks Rare, https://looksrare.org/collections/0xeD5125c5cB2A75d43fC8662B1b9EE7fE6528AC07?queryID=b2125bc74a9969772af3f79ef85b44ed (last visited Oct 5, 2022); Space bored ape yacht club, OpenSea (2021), https://opensea.io/collection/spaceboredape (last visited Oct 2, 2022); Twisted ape yacht club, OpenSea (2021), https://opensea.io/collection/twistedapes (last visited Oct 2, 2022); VAPES – Vertically Flipped Apes, Opensea (2021), https://opensea.io/collection/vapes-vertically-flipped-apes (last visited Oct 5, 2022); Zullup , 3D BAYC derivatives by Zullup OpenSea (2021), https://opensea.io/collection/3d-apes-by-zullup (last visited Oct 2, 2022).
 crypto_port, I will create generative nft collection 1k, 10k,100k for opensea Fiverr, https://www.fiverr.com/share/z90lyv (last visited Oct 2, 2022); darpankumar12, I will draw, design or create layers, traits and accessories for your nft characters Fiverr, https://www.fiverr.com/share/pz19jp (last visited Oct 2, 2022); goldy83527, I will create best ape nfts Fiverr, https://www.fiverr.com/share/eo4b83 (last visited Oct 2, 2022); pmvdesigner, I will do a creative 2d,3d amazing nft art that you can sell as a collectible Fiverr, https://www.fiverr.com/share/V0Wbje (last visited Oct 2, 2022); primecreator9, I will design unique nft character Fiverr, https://www.fiverr.com/share/R08E72 (last visited Oct 2, 2022); pro_design72, I will do unique nft art collection with 100k, 10k, 1k nfts Fiverr, https://www.fiverr.com/share/W6ydNL (last visited Oct 2, 2022); yoshikio7, I will design an ape nft Fiverr, https://www.fiverr.com/yoshikio7/design-an-ape-nft (last visited Oct 2, 2022); and, yuugen_animeart, I will create 100 plus unique nft apes for you Fiverr, https://www.fiverr.com/share/2e20Y8.
 Complaint, at ¶ 33-4 and 54, Yuga Labs v. Ryder Ripps Et Al., 2:22-cv-04355 (C.D. Cal. Filed Jun. 24, 2022.)
 #4683 – Branson, Copyright Registration No. VA0002304144; #9768 – Rockstar Robbie, Copyright Registration No VA0002304242; Bored Ape Yacht Club #1652, Copyright Registration No VA0002301661; Bored Ape Yacht Club #6207, Copyright Registration No VA0002301660; Bored Ape Yacht Club #7090, Copyright Registration No VA0002301657; Bored Ape Yacht Club #7796, Copyright Registration No VA0002301648; Bored Ape Yacht Club #8824, Copyright Registration No VA0002301641; BORED APE, Copyright Registration No VA0002312310; Mutant Ape Yacht Club #1699, Copyright Registration No VA0002297217; Mutant Ape Yacht Club #9314, Copyright Registration No VA0002301654; MUTANT APE, Copyright Registration No VA0002312309; and, SMOKING APE, Copyright Registration No VA0002312305
 U.S. Trademark Application Serial No. 97587648 (filed Sep. 12, 2022)
Id.; See also Bored Ape Yacht Club #4440, OpenSea, https://opensea.io/assets/ethereum/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d/4440 (last visited Oct 4, 2022).
 U.S. Trademark Application Serial No. 97587648 (filed Sep. 12, 2022)
 Bored Ape Yacht Club #5771, OpenSea, https://opensea.io/assets/ethereum/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d/5771
 Lcx Ag v. 1.274m United States Dollar Coin, 2022 NYLJ LEXIS 961
 Fabrizio D’Aloia v. Persons Unknown, Binance Holdings Ltd. and Others, EWCH 1723 (Ch) BL-2022-001008 (June 24, 2022)
 Wal-Mart Stores v. Samara Bros., 529 U.S. 205, 207 (2000)
 Id. at 208,
 Id. at 216
 Motion to Strike Compliant, 24, Yuga Labs v. Ryder Ripss Et Al., 2:22-cv-04355 (C.D. Cal. Filed Aug. 15, 2022)
 Where can I check the history of an NFT?, Opensea, https://support.opensea.io/hc/en-us/articles/1500003082601-Where-can-I-check-the-history-of-an-NFT- (last visited Oct 1, 2022).
 LCX Team, How to verify NFT authenticity
 Harith Kamarul, Public name Tags & Labels, Etherscan Information Center (2021), https://info.etherscan.com/public-name-tags-labels/ (last visited Oct 1, 2022).
 See 3683 – bored ape yacht club, OpenSea, https://opensea.io/assets/ethereum/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d/3683 (last visited Oct 1, 2022).
 See Token 3683, Ethereum (ETH) Blockchain Explorer, https://etherscan.io/token/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d (last visited Oct 1, 2022).
 See BAYC Token Contract, Ethereum (ETH) Blockchain Explorer, https://etherscan.io/token/0xbc4ca0eda7647a8ab7c2061c2e118a18a936f13d (last visited Oct 1, 2022).
 Ryder Ripps, RR/BAYC
 Thrive Nat. Care v. Thrive Causemetics, No. CV 20-9091 PA (ASx), 2021 U.S. Dist. LEXIS 201284, at *1 (C.D. Cal. Oct. 6, 2021) see also 3 Business Torts § 28.04; Infringement | Likelihood of Confusion—In General
 M2 Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1076 (9th Cir. 2005)
 Ironhawk Techs., Inc. v. Dropbox, Inc., 2 F.4th 1150, 1158 (9th Cir. 2021)
 Pom Wonderful Ltd. Liab. Co. v. Hubbard, 775 F.3d 1118, 1121 (9th Cir. 2014)
 Network Automation, Inc., 638 F.3d, at 1141.
 Marketquest Grp., Inc. v. BIC Corp., 862 F.3d 927, 931 (9th Cir. 2017)
 Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1174 (9th Cir. 2010)
 M2 Software, Inc. v. Madacy Ent., 421 F.3d 1073, 1085 (9th Cir. 2005).
 Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 634 (9th Cir. 2005)
 JL Bev. Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1101 (9th Cir. 2016)
 BBK Tobacco & Foods LLP v. Cent. Coast Agric. Inc., No. CV-19-05216-PHX-MTL, 2022 U.S. Dist. LEXIS 127964, at *58 (D. Ariz. July 19, 2022) citing Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., 618 F.3d 1025, 1035-36 (9th Cir. 2010)
 M2 Software, Inc., 421 F.3d, at 1076.
 Re/Max Int’l, Inc. v. Help-U-Sell, Inc., No. CV 89-7416 KN (Ex), 1991 U.S. Dist. LEXIS 20040, at *1 (C.D. Cal. Aug. 19, 1991)
 NFL Props. v. Wichita Falls Sportswear, Inc., 532 F. Supp. 651, 654 (W.D. Wash. 1982)
 M2 Software, Inc., 421 F.3d, 1076.
 Id. at 1085.
  See, generally, Yuga Labs, Inc. v. Ripps, No. CV 22-4355-JFW(JEMx), 2023 U.S. Dist. LEXIS 71336 (C.D. Cal. Apr. 21, 2023).
 Id. at *6.
 Id. at 10-11; see, supra, Part III(C)(1)(c).
 See, Sleekcraft, 599 F.2d 345.
 Yuga Labs, 2023 U.S. Dist. LEXIS 71336, at *11.
 Id. at *12.
 Id. at *12-13; see, GoTo.com, Inc., 202 F.3d 1209.
 See Where can I check the history of an NFT?, supra, note 405.
 Yuga Labs, 2023 U.S. Dist. LEXIS 71336, at *12
 Number of Twitter users worldwide from 2019 to 2024, Statista, https://www.statista.com/statistics/303681/twitter-users-worldwide/ (last visited May 7, 2023).
 See, Complaint, at ¶ 42, Yuga Labs v. Ryder Ripss Et Al.
 Compare, Bored Ape Yacht Club (@BoredApeYC), Twitter, https://twitter.com/BoredApeYC; to Ryder Ripps (@ryder_ripps), Twitter, https://twitter.com/ryder_ripps (BAYC’s twitter account has over 1 million followers whereas Ripps’s only has 36.4 thousand followers; a ratio of almost 28 to 1).
 Yuga Labs, 2023 U.S. Dist. LEXIS 71336, at *12
 Vida Enter. Corp. v. Angelina Swan Collection, Inc., No. 2:22-cv-00915-ODW (JCx), 2023 U.S. Dist. LEXIS 63686, at *1 (C.D. Cal. Apr. 11, 2023).
 Id. at *27.
 Id. at *28.
 See, Bored Ape Yacht Club (@BoredApeYC), Twitter (Mar. 29, 2023, 4:22 PM), https://twitter.com/BoredApeYC/status/1641174127758254082
 See, Ryder Ripps (@ryder_ripps), Twitter (May 8, 2023, 12:04 PM), https://twitter.com/ryder_ripps/status/1655604544498434048; Ryder Ripps (@ryder_ripps), Twitter (May 6, 2023, 10:09 AM), https://twitter.com/ryder_ripps/status/1654850928670015488 ; Ryder Ripps (@ryder_ripps), Twitter (May 3, 2023, 06:01 AM), https://twitter.com/ryder_ripps/status/1653701309793730560.
 See, Ryder Ripps (@ryder_ripps), Twitter (June 23, 2022, 4:35 AM), https://twitter.com/ryder_ripps/status/1539889773862699009; Ryder Ripps (@ryder_ripps), Twitter (Jan. 2, 2022, 7:48 PM), https://twitter.com/ryder_ripps/status/1477803972115464194?lang=en
 See, Zamfir v. Casperlabs, LLC, 528 F. Supp. 3d 1136, 1140 (S.D. Cal. 2021) (paraphrasing 15 U.S.C. § 1125(a) by stating that the fourth element of a claim of false designation of origin is that the false designation is likely to cause confusion or deceive a consumer as to the relationship between the defendant and the trademark holder.)
 See, Where can I check the history of an NFT?, supra, note 405.
 Yuga Labs, 2023 U.S. Dist. LEXIS 71336, at *12