Damages of at least US$1.6 million awarded by the US District Court in the ‘Bored Ape Yacht Club’ litigation

31 October, 2023
In May 2023 we reported on the IP infringement decision of the Californian District Court, in relation to the dispute between the creators of the Bored Aped Yacht Club (BAYC) non-fungible token (NFT) collection, Yuga Labs, and the 'artists' Ryder Ripps and Jeremy Cahen.  In that decision, the Court found against the defendants and, on 25 October 2023, the order for damages was handed down.  This blog post looks at the recent damages decisions and its implications.  (For a refresher on NFTs, you can consult our series here.) As background, the defendants created an NFT collection called the Ryder Ripps BAYC (RR BAYC) collection, which essentially copied the iconic ape images from the Yuga Labs' BAYC collection.  The defendants' alleged that this was for the purposes of commentary on Yuga Labs and the BAYC NFTs.  The Court found against the defendants on the claims of false designation of origin and cyber-squatting (in relation to certain domain names used by the defendants).  It also dismissed the defendants' First Amendment / Rogers defence because no artistic expression was at issue, finding that "As Yuga has pointed out, and the Court agrees, Defendants’ sale of RR/BAYC NFTs is no more artistic than the sale of a counterfeit handbag". Read more

UK Select Committee recommends legislation on AI including to establish and enforce rights of IP owners

04 September, 2023
The UK Science, Innovation and Technology Select Committee (which recently conducted an inquiry into the impact of AI on several sectors) has published The Governance of Artificial Intelligence: Interim Report identifying 12 challenges of AI, including that for intellectual property, and recommends legislation during this parliament. The report also expresses concerns that the UK will fall behind if there are delays, given the moves made by the EU and US to regulate AI already. On IP it recommends that where AI models and tools make use of other people’s content, policy must establish the rights of the originators of this content, and these rights must be enforced. Read more

Talking Shop: A consumer sector podcast series: Episode 5 – Why NFTs; why now?

11 July, 2023
Josh Todd, Giulia Maienza and George McCubbin join Aoife Xuereb to discuss the NFT (Non-Fungible Token) marketplace in the consumer sector – from fine wine and fashion to enhancing the customer experience. They explain how types of marketplaces work, whether that be trading NFT-linked physical products or digital assets in the real world or the metaverse. Commercial legal considerations include IP, … Read more

Remedies for IP infringement by NFTs – the MetaBirkins case continues

04 July, 2023
The US District Judge has now handed down its opinion and order (23 June 2023) on a number of post-trial motions sought by the parties in the "MetaBirkin" case and these provide some interesting insights into how courts may approach the question of remedies in non-fungible tokens (NFT) related cases. The motions for additional remedies (including the transfer of social media accounts and domain names, as well as the transfer of the NFTs and accounting for further income received via the NFTs) followed the Manhattan jury's decision in February 2023 to award Hermès US$133,000 in damages. Read more

Trade mark protection in virtual worlds/the metaverse – IP offices respond with new classes for registration of virtual goods/NFTs as trade marks and the EUIPO deals with “metaverse” marks

29 March, 2023
The new version of the Nice Classification, the 12th edition, carries new categories for registration of trade marks in relation to NFTs and is being used by several national trade mark offices including the EUIPO and IP Australia. Read more to discover the approach being taken there and in the UK to marks in the metaverse? Read more

The IP in NFTs – Strategies for protecting your brands and products in the metaverse

15 August, 2022
The creation ("minting") and sale and use of NFTs raises many IP issues which we have discussed in our previous posts in our IP in NFTs series. However, brand owners and product manufacturers must also be vigilant in monitoring the virtual marketplaces to ensure that third parties are not creating NFTs that infringe their own IP rights.  This is especially true where the company is considering releasing or has released NFTs, because the public will begin to associate the brand with NFTs (which could include infringing NFTs).  There are several strategies that companies could adopt to minimise this risk. Read more