描述
May 17, 2023
TO THE PERSONS WITH WALLET ADDRESSES LISTED BELOW AND ALL COLLECTORS
Attn: 0x0ebE30595a44E5288C24161dDfC1E9fa08E33a0C
Re: “Nyan Meme Coin” cryptocurrency offering
Notice of Copyright and Trademark Infringement/ DEMAND TO CEASE AND DESIST
We represent Nyanify, Inc. and Mr. Christopher Orlando Torres, the worldwide copyright
owners of the visual images of the world-famous “Nyan Cat” as evidenced by U.S. Copyright
Registration Number VAu001063390 (the “Work”) depicted below, and of the trademark rights
for the “Nyan Cat” design trademarks (Registration Numbers: 4377351 and 4457316, respectively)
also depicted below, and the “NYAN CAT” word trademark (Registration Number: 4376980) as
registered with the United States Patent and Trademark Office (collectively, the “Marks”).
Copyrighted image Trademarked Design
Since it was posted on YouTube in April 2011, Nyan Cat has become an internet viral
phenomenon, with over 209 Million YouTube views, and an instantly-recognizable visual work
throughout the world. As a result, third party licensees throughout the world have paid and
continue to pay significant fees for the association of the Work with their brands, and the use of
the Work on various physical and digital goods and services. The Work likewise continues to
garner considerable commercial value and income as a result of such lawful uses by licensees such
as Mentos, Sprint, Nike, Vitamin Water (Coca Cola), Jakk’s Pacific, Old Spice, Honda Motors,
Delta Airlines, and many more companies. The Work has further garnered worldwide attention
due to the sale of the original Nyan Cat non-fungible token (NFT) via Foundation.App, and various
other collaborations between our client and other legitimate licensees and collaborators with
whom our client willingly enters into licensing agreements for financial gain, e.g. Snoop Dogg,
DJ Aoki, and many others.
Copyright & Trademark Infringement
Nyan Cat Coin
May 17, 2023
Page 2
We have just been made aware that persons (collectively the “Infringers”) have
misappropriated our clients’ copyrighted Work and trademarked Marks, and are advertising on the
website www.nyanmemecoin.com their intent to proceed with a so-called “Nyan Meme Coin”
(the “Infringing Offerings”) embodying such Work and Marks (Exhibit A), and also promoted
on Twitter, and Telegram. We have also been made aware that the Infringing Offerings have
been listed on the following exchanges: Uniswap, DEXTools, and (intended offerings / not listed
yet). All such images (and additional evidence) have been retained for purposes of future litigation,
if necessary.
Obviously, our Clients have never authorized these acts, nor provided any consent to the
use of the Work or Marks in connection with any of the foregoing Infringing Offerings. In fact,
these offerings, and all related promotional activities surrounding the same constitute blatant and
willful infringements of our clients’ copyright and trademarks rights because of the use and
incorporation of the Work (and protectible elements thereof) and the Marks on and in, and in
connection with, the Infringing Offerings. The Infringing Offerings contain direct copies or
adaptations of the Work and uses of the Mark in the reproduction, distribution, listing,
advertisement, shilling, and other activities related thereto. All of the foregoing uses of the Work
along with the distribution and display thereof constitute an infringement of our clients’
exclusive right of reproduction (17 U.S.C. § 106 (1)), distribution (17 U.S.C. § 106 (3)), public
display (17 U.S.C. § 106(5)), and adaptation (17 U.S.C. § 106(2)) under US Copyright law
and pursuant to section 17 U.S.C. § 501 thereof.
Furthermore, the use of the Marks in connection with Infringing Offerings constitutes
trademark infringement under §32 of the Lanham Act and false designation of origin under § 43(a)
of the Lanham Act, and has already created actual confusion among consumers regarding the
source of the goods, leading them to mistakenly believe that Infringing Offerings are somehow
affiliated with our clients. They are not. Evidence of trademark infringement is already apparent
through various social media postings connecting our client with the Infringing Offerings.
Additionally, the use of the dominant portion our clients’ trademark Nyan Cat in
connection with domain name of the website www.nyanmemecoin.com is a violation of the federal
Anticybersquatting Consumer Protection Act pursuant to 15 U.S.C. § 1125(d). If found liable, the
Act provides for statutory damages of no less than $1,000.00 and up to $100,000.00 for the
infringing domain names. In addition to liability under the Act, numerous courts have restrained
individuals from the use of infringing and diluting domain names and ordered the deletion and/or
transfer of the domain names. See e.g., Jews for Jesus v. Brodsky, 993 F. Supp. 282, 293 (E.D.N.J),
aff’d, 159 F.3d 1351 (3d Cir. 1998); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.
1998); Playboy Enter., Inc. v. Calvin Designer Label, 985 F. Supp. 1221, 1219 (N.D. Cal. 1997).
Through the receipt of this letter, persons using our clients’ Marks as domain names have
actual notice that your actions constitute trademark infringement, and unfair competition; these
acts constitute willfulness and, pursuant to 15 U.S.C. § 1125(c)(2), our clients would therefore be
entitled to additional remedies, including attorneys’ fees and damages up to $100,000 USD under
15 U.S.C. § 1125(d). See Cardservice Int’l, Inc. v. McGee, 1997 U.S. Dist. LEXIS 552 (E.D. VA
January 16, 1997).
Copyright & Trademark Infringement
Nyan Cat Coin
May 17, 2023
Page 3
Finally, neither of the foregoing uses of our clients’ Work can be deemed “fair use,” as the
mere copying of our clients’ Work is not the type of activity set out in section 107 of the Copyright
Act, which Congress listed as examples of where fair use might be found: criticism, comment,
news reporting, teaching, scholarship and research. 17 U.S.C. § 107. The Infringers’ promotion
and sale of the Infringing Offerings is neither of these activities; the theft of legally protected
copyrights and trademarks is neither news reporting, teaching, scholarship or research, nor are the
uses made of our clients’ Works in any way transformative, nor nominative. Clearly all of the
Infringing Offerings are emblazoned with our clients’ Work and Marks either exclusively, or
primarily. A transformative work is one which “adds something new, with a further purpose or
different character, altering the first with new expression, meaning or message...” Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569 (1994) at 579. Where the infringing work largely consists
of the plaintiff’s work, it demonstrates a dearth of transformative character, and is less likely to be
considered a fair use. See Campbell, 510 U.S. 569; see also Los Angeles News Service v. KCAL-
TV Channel 9, 108 F.3d 1119 (9th Cir. 1997) (broadcaster’s voice-over over videotape of Reginald
Denny beating held insufficient to be transformative.
Conformably, demand is hereby made that all persons directly, vicariously, or
contributorily involved in the offering, sale, exchange, promotion, listing or any and all other
activities related to this “Nyan Meme Coin” Infringing Offering and all other variations of
the foregoing which incorporate, reproduce, distribute, adapt, or otherwise use our clients’
“NYAN CAT” related Trademarks and Copyrights immediately STOP and FURTHER
REFRAIN from all such infringing activities, including the take down of all related listing
pages, and other online properties branded with or otherwise using the Trademarks and
Copyrights, and the de-listing of the Infringing Offering from all exchanges. Furthermore,
all persons or entities rendering services to www.nyanmemecoin.com , or in any way
contributing to the herein-stated infringing act are hereby notified that they will necessarily
be held legally liable for direct and/or contributory and/or vicarious infringements of our
clients’ Trademarks and Copyrights, including use of the same to promote the Infringing
Offering.
Unless full compliance with our demands herein is obtained, our client will proceed to file
a lawsuit for trademark infringement and any other appropriate causes of action against all persons
who are contributively, vicariously or directly aiding this infringement including but not limited
to all parties in the supply and distribution chain who may in any way have benefitted from these
infringing activities, as well as any service providers whom are contributing thereto.
The foregoing is not intended to be an exhaustive listing of all the remedies available to
our client in connection with the claims set forth herein. The foregoing is without prejudice to any
remedy, claim, or defense otherwise available to our client under the law, all of which are expressly
reserved. We trust you appreciate the severity of this claim and will act reasonably to avoid
unnecessary litigation.
Copyright & Trademark Infringement
Nyan Cat Coin
May 17, 2023
Page 4
DMCA NOTIFICATION:
We have a good faith belief that the use of the copyrighted material described above is not
authorized by the copyright owner, its agent, or the law. The undersigned swears, under penalty
of perjury, that the information in the notification is accurate and that we are authorized to act on
behalf of the owner of the copyright that is allegedly infringed. Accordingly, this letter shall serve
as a so-called “take down notice” under the Digital Millennium Copyright Act (17 U.S.C. § 512)
(the “DMCA”).
Sincerely yours,
/Kia Kamran/
Kia Kamran
ATTORNEY AT LAW
