California Judge John F. Walter dismissed artist Ryder Ripps’s attempt to toss out a lawsuit that Yuga Labs, the parent company of the Bored Ape Yacht Club NFTs, brought against him. Now, the case could still head to trial.

In June, Yuga Labs filed a suit in which they alleged that Ripps’s RR/BAYC, a conceptual-art NFT collection, had misused Bored Ape Yacht Club’s trademarks to mislead buyers and devalue their brand.

In Ripps’s RR/BAYC project, the NFTs contained links that pointed to the same digital assets that as Bored Ape Yacht Club NFTs. Yuga Labs claimed that he had purposefully misled potential BAYC customers into buying his NFTs instead.

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In August, Ripps’s lawyers filed an anti-SLAPP motion, through which defendants can claim a lawsuit against them is being used to silence their speech. In the anti-SLAPP motion, Ripps’s lawyers said he had been engaged in a months-long online campaign to unmask alleged alt-right and neo-Nazi imagery embedded in BAYC NFTs by the company’s founders, Greg Solano, Wylie Aronow, Zeshan Ali, and Kerem Atalay. Ripps’s NFT project RR/BAYC was devised to protest this.

Judge Walter wrote that BAYC had “not brought claims against Defendants for defamation, slander, or libel. Instead, Plaintiff’s claims are limited to and arise out of Defendant’s unauthorized use of the BAYC Marks for commercial purposes.” He said that Ripps’s NFTs did not put forward an “idea or point of view,” and that, therefore, the free speech protections of an anti-SLAPP motion did not apply here.

“Our lawsuit to hold Ripps and Cahen accountable for their obvious and blatant theft of Yuga Labs’ trademarks rightfully moves forward with this ruling,” Yuga Labs said in a statement. “The court agrees that their heinous lies are unrelated to the case and do not give them carte blanche to infringe upon our marks. They intentionally misled consumers and made millions by using Yuga’s intellectual property to market and sell copycat NFTs. We will continue to prove these facts as the case progresses.”

Ripps’s lawyers, however, said that the dismissal did not invalidate the artist’s claims about the racism of the BAYC project.

“There’s no question that what Ryder was criticizing here was what he perceived as incredibly offensive, racist and neo-Nazi imagery and that that is an important part of the case,” said Louis Tompros, one of Ripps’s lawyers. “In the disclaimer Ryder wrote that if you’re buying [an RR/BAYC NFT], you’re buying this to protest them, it’s a ‘fuck you’ to Yuga Labs. That’s was a pretty clear statement that distinguished one project from another, and they’ll have to prove that buyers still could have been confused.”

Tompros added that he plans to “show that this was indeed conceptual art and that it is highly implausible that there was any confusion as to what customers were buying.”

If Ripps does not appeal this decision, this case will go to trial and a jury will have to make judgements on a variety of issues, from the boundaries of conceptual art to the function of NFTs. The question of whether or not Ripps’s claims as to the racism of the BAYC project is relevant will also be in a potential jury’s hands.

The other issue Yuga Labs will have to contend with is whether or not the recent class action lawsuit taken against them, which claims that they concealed compensation for celebrities in return for promotion of their product, will come into play.