The 1% Patch: Bored Ape Yacht Club's Trademark Trouble
The 1% Patch: Bored Ape Yacht Club's Trademark Trouble
Were 2.53% of Bored Apes misled to believe they held commercial rights over a famous motorcycle club?
The One Percent Patch
Often with the Bored Ape Yacht Club, the wackiest and most ludicrous elements are swimming right along the surface.
I love riding motorcycles, so the 1% patch stood out to me immediately when the Bored Ape art revealed in early May 2021. The “Biker Vest” trait bears a red and gold 1% diamond patch and is the sixth most-popular Bored Ape clothing trait.
The real-life origins of the 1% patch are shrouded in mythology and often hotly contested. Hundreds of versions exist of how the patch came to be, but the majority of origin stories share a few overlapping commonalities. Most everyone seems to agree that after the heavily sensationalized Hollister “riot” in 1947, the American Motorcycle Association responded to panic over reports of violence at the Hollister rally: “99% of the motorcycling public are law-abiding; there are 1% who are not.” (Ironically, the only source that denies this version of events appears to be the AMA itself.)
Many MCs bristle at the idea that “outlaw” or “one percenter” refers to criminality. In my experience, some contend that wearing the 1% diamond simply means living outside the norms and rules of society.
A frequently repeated phrase goes something like: “99% of all bikers are law-abiding citizens, but there are 1% that live by their own rules.”
Back in 1947, the AMA was out of touch, out of sense, and out of pocket. They spoke down in a belittling, authoritative tone towards cliques of post-war motorcyclists, who in turn received a lashing from the press. This assertion of authority became a spark for the counterculture.
From that spark of defiance arose the outlaw motorcycle club. Riders across the country embraced the newfound identity of living outside the AMA’s supposed 99%, forging clubs around living together in the one percent.
Some of these clubs go by names like the Outlaws, the Hells Angels, the Mongols, the Pagans, and the Chosen Few – all bear their own version of the 1% diamond patch.
Yet there’s only one 1% club that rocks the red and gold diamond: the Bandidos MC.
The Bandidos colors were inspired by the colors of the U.S. Marine Corps. The Bandidos founder, Donald Chambers, was a former Marine. Many of the men who joined the original incarnation of the club were young Korean or Vietnam veterans who returned home to a country that didn’t receive them with respect or dignity. Many of these young men found direction and brotherhood in motorcycle clubs like the Bandidos.
Today, the Bandidos are one of the largest 1% MCs both in the United States and worldwide, with chapters established across the Americas, Europe, Australia, and Asia.
And there’s no doubt that the Bored Ape biker vest copied the design of the Bandidos diamond.
The Bored Ape patch is identical to the patch worn back in the 1960s and 70s by Chambers through the present day Bandidos club. It has the same exact red alpha-numeric symbol surrounded by and red borders on a gold background. It appears on the Bored Ape YC vests in the same position as the Bandidos MC vests. The patches are indistinguishable apart from the fact that one is embroidered to a cartoon Ape.
There are 253 Bored Apes wearing the biker vest with the diamond patch. One golden Bored Ape with the diamond patch trait sold for over $1.7 million. Even the illustrious entrepreneur Gary Vee owns a biker Ape with the red and gold diamond patch.
A considerable sum of money was collectively invested into diamond patch Bored Apes, partially under the premise that their investors own the commercial license to the red and gold 1% diamond. It’s shocking that it’s gotten to this point with almost zero scrutiny.
The Legal Issue
How do “full commercial rights” operate when the image contains trademarked material?
A prominent marketing proposition of the Bored Ape NFTs is that purchasers are supposedly entitled to commercial use rights over the image. According to the Bored Ape Yacht Club’s official “Terms & Conditions” page, Yuga Labs explains that “when you purchase an NFT, you own the underlying Bored Ape, the Art, completely.”
Brian L. Frye, a law professor at University of Kentucky College of Law, agreed that there could be potential legal perils when it comes to commercializing the “Biker Vest” artwork which Yuga says the Ape holder owns “completely.”
“I should think so,” Frye wrote to me. “Not only because the image they own the rights to use incorporates a registered mark, but also because the mark it includes will be unappealing to the overwhelming majority of licensees.”
Over the past year, Yuga empowered holders to license their Bored Apes to create products, merchandising, and otherwise generate revenue streams with their Bored Apes via everything from music videos to M&Ms. Their T&C reads: “Yuga Labs LLC grants you an unlimited, worldwide license to use, copy, and display the purchased Art for the purpose of creating derivative works based upon the Art.”
The infringing 1% patch potentially draws into question the notion that the owners own the art “completely.”
Not only have the Bandidos MC worn the red and gold 1% patch for over five decades, but the Bandidos website also claims that “all logos, brands and designs regarding Bandidos MC are trademark-protected (TM). Unauthorized usage, reprography and propagation is prohibited and will be legally prosecuted in any case.”
Ariel Givner, a corporate attorney who specializes in web3 industries, agreed with Frye. She mentioned a cease and desist from the Bandidos as a possibility “unless Yuga obtained a license from Bandidos to use their logo.”
“It just doesn’t sit well with me,” Givner further explained. “Yuga should know better than to create an NFT with a potentially infringing mark.”
She raised another important concern in this situation: who would bear legal liability if some party were to take legal action against an infringing Ape holder? Would Yuga Labs offer legal protection to their holders? Or would the Ape holders be on their own, subject to potential legal action?
Givner explained why she feels Yuga Labs should bear some responsibility as creators of the artwork: a holder receiving the wrong end of legal catastrophe “would be like Steve Madden making an infringing shoe and then instead of suing Steve Madden for the infringement, [they] sue the buyer.”
Similar Precedents Infringing Against MCs
Motorcycle clubs have successfully defended their trademarked cuts via legal avenues. In 2019, a federal judge ruled against the U.S. government’s attempt to seize the Mongols MC’s trademarked logo, writing: “Though the symbol may at times function as a mouthpiece for unlawful or violent behavior, this is not sufficient to strip speech of its First Amendment protection.”
The Hells Angels sued corporations such as Amazon, Toys R Us, Alexander McQueen, Zappos, and Marvel for all different forms of infringement ranging from comic books and designer clothes to yo-yos and jewelry.
They even settled with Young Jeezy for selling bootlegged versions of their signature jackets. Jeezy “immediately yank[ed] the items in question off the shelves.” The Hells Angels told TMZ: “We always get what we want.”
The Hells Angels once again got what they wanted from Disney when their lawsuit pressured the company to remove all references to Hells Angels from their 2007 comedy Wild Hogs.
“People think that just because a group is depicted a certain way that they’re kind of no longer allowed or should be given the benefit of the law in other areas, such as intellectual property,” Fritz Clapp, longtime lawyer for the Hells Angels, told the Fashion Law.
When it comes to defending their designs, MCs are downright serious. For clubs, defending intellectual property is an opportunity to build reputation while staying vigilant to their brand.
Frye also noted that a 1%er “diamond within a diamond” design is also currently registered with a whiskey company. I asked him if the absence of the “-er” ending on the Bored Ape patch would provide some legal wiggle room, but he said that he doesn’t think the missing suffix would be “dispositive in a design mark that is so similar.”
“The registered mark claims the design in any colors,” Frye explained. “I wonder if the club is aware of this?”
I wondered too.
Bored Ape 1% Patchers Are Already Testing the IP Waters
I attempted to reach out to every ape who socially represents the 1% patch trait on social media, but I was only to get a response from one owner: Ape 4567. I asked what he thought of his Ape’s 1% patch.
4567 let off a flurry of insults, referring to me as a “rat” and telling me to “stop asking stupid ass questions.” I asked what his diamond patch meant to him in an attempt to clarify its personal significance. 4567 explained he doesn’t know what it means and doesn’t care what it signifies.
“It means nothing to me. It’s an ape I bought for 1.2 [Ether] and that’s now worth 150. One of many apes I own. You’re a serious fucking loser,” continued Ape 4567.
I attempted to clarify why his ape is worth 150 ETH, over twice the market price to liquidate a Bored Ape.
“Check flipped brim floor,” he responded. (At the time of writing, the flipped brim floor rests at just under 100 ETH.)
Ape 4567 also intimated that he would seek to help Yuga Labs initiate legal action against me – a recurrent issue I’ve experienced with Ape owners while publishing about Yuga Labs.
I wondered why 4567 quickly escalated to hostility, threats, and personal attacks in response to straightforward questions about his chosen social representation.
The reason became apparent a few days later when Erve, a European fashion designer specializing in licensed apparel, announced a new branding deal. Along with 10 other Apes he appears to own, 4567 is releasing a collection through Erve that includes “daywear, nightwear, accessories, socks, and underwear to the retail audience.”
Soon, Europeans will be able to walk into a local retailer to purchase socks and underwear – branded with the wide-eyed Bored Ape 4567 in his luxurious flipped brim and of course, the Bandido 1% patch.
I realized 4567 perceives the value of his Ape not just in its liquid value, but in the branding deals and exposure for the image of his ape – an image he might not actually (completely) own.
There are loads of 1% MCs across Europe, all with their own subcultures and relationships. How will they react when they see motorcycle club “apes in stores next to pop culture tees like Star Wars or Winnie the Pooh”? In my eyes, it would be an explicitly stupid idea to sell a novelty t-shirt with the image of a monkey in a 1% vest.
After all – you never know who might not take kindly to being compared to a monkey.
False Flagging: The Culture Issue
Even if the legal issues turn out to be resolvable, there should be a cultural warning issued to Bored Ape YC investors. Club symbols can be seen as property of the club – because they are literally intellectual property.
If you’re not a one percenter, then you shouldn’t represent yourself as a one percenter in any manner – even digitally. A 1% patch is generally viewed in motorcycle culture as an earned insignia. Technically, anyone can buy a diamond patch online and press it onto a vest – but there’s an old adage about earning your patch by keeping it on.
When GQ interviewed Edward Winterhalder, retired founder of the Oklahoma chapter of the Bandidos in 2015, they asked him about wearing a misappropriated club patch. Winterhalder’s response was firm:
“That doesn't work in the motorcycle world. I'm sure there's guys that have done it, until they ran into a member of the club. Then it became an issue. They probably get their ass kicked, and life goes on.”
That’s not to suggest that a Bandido would act out in violence against an outsider wearing their colors. The Bandidos are infamous enough that they don’t need to go looking for trouble. They might just mock stolen valor. They might not care at all.
Winterhalder retired over two decades ago. His mentality is likely more reflective of a bygone era, so I wouldn’t necessarily take it as representative of the club’s current cultural perspectives. Yet, there’s a core truth underscored here: trespassing against a club’s colors can evoke strong feelings or severe reactions.
If you represent MC colors in a territory where those patches are not the power club, the dominant club of that territory might easily take offense. An imitation patch can easily be perceived an as authentic — or as derisive mockery of the culture.
In other words, a modern Bandido might not care enough to bother with a fake patch offender, but it definitely might attract the attention of another club. In some areas, a diamond patch – and its colors – are guarded with blood.
An increasing number of Bored Ape holders are designing elaborate cosplays, licensed characters in entertainment productions, or branded products which convey the traits of their apes. Yuga has a responsibility to inform its collectors of the cultural significance and histories behind the imagery they purchase (and supposedly own, “completely”).
This is true not only for the diamond patch, but for many traits in the BAYC collection.
Nicky Nickels — the Bored Ape Biker?
Bored Ape licensing deals extend far beyond mere novelty shirts and underwear. Ape owners deal their commercial license rights out to movies, TV shows, comic books, and video games.
One of the most famous examples is “Jenkins the Valet,” a project operated by Tally Labs, who released a series of products leading to an upcoming novel written by former pickup artist Neil Strauss. Between primary sales and secondary fees, Jenkins the Valet netted at least a couple million dollars.
Dozens of Apes wearing the 1% patch licensed their Apes to Jenkins the Valet, some giving them MC related names and backstories like “Captain Harley,” a biker vest Ape who found the Yacht Club while “cruising with his biker gang.”
All of these Ape owners are “paid a profit share for all primary and secondary sales of the complete book NFT,” according to the Jenkins website. Only one however, is set to appear in the novel: Nicky Nickels.
The Ape named “Nicky Nickels” is described in his Jenkins profile as an Ape “born on the wrong side of the swamp” who “join[ed] up with the local biker gang, the Apes of Anarchy (AOA).”
Nicky Nickels is owned by Gene Nubla, who also appeared to license his ape to appear in film and on t-shirts too. Most striking about Nicky is that Nubla went as far as to incorporate motorcycle club elements into his IRL social identity, including a leather MC vest sporting the Bandidos 1% patch.
“It'd be nice to be able to benefit off the royalties of anything that comes off this,” Nubla explained to an LA publication. “But I'm doing it mainly just for the vibes.”
If he isn’t actually a one percenter, wearing that vest isn’t a “vibe” at all. I would recommend retiring the vest, or at least stripping off the Bandidos MC patch. Nubla did not respond to my request for comment, so I am unclear if he is a one percenter or simply roleplaying as one.
It might be safe to wear an imitation MC vest around ApeFest, but it’s a foolish idea to walk around with that vest in the outside world. Wearing a fake 1% vest in the wrong place at the wrong time can lead to fast regrets.
Jenkins the Valet responded to request for clarification about their plans with Nicky, stating: “Nicky is not depicted as a ‘1%-er’ and we have also gone back to review the illustrations created to support the novel. None of them contain the specific patch.”
Excluding the 1% patch or characterizations as a one percenter seems like a prescient approach. Removing the patch also seems like an easy solution for Yuga Labs to adopt.
But what happens to licensors who actually incorporate the 1% patch or a falsified “outlaw MC” personality into their products?
Who bears legal or ethical responsibility in such a situation? The executives of Yuga Labs? The founders who approved the “biker vest” trait? Or their naïve investors, who are emboldened by Yuga to embody, evangelize, and merchandise their Apes?
Ignorant Precedents and a Troubling Lack of Accountability from Yuga Labs
The word “irreverent” is often deployed by the Bored Ape founders to explain their cultural decisions, including when I spoke with Wylie Aronow, founder of Yuga Labs. Irreverence means lacking proper respect or seriousness. In art, irreverence towards pop culture is usually perceived as satire.
The problem is that a diamond 1% patch isn’t something to treat without respect or seriousness. In some cases, encouraging people to satirize a culture they don’t actually understand can be offensive or even dangerous.
Despite over seventeen months of time to explain the story behind the Bored Ape art, the Yuga founders still resist publicly illuminating the reasoning behind many of the most fundamental aspects of their collection. The Bored Apes have done billions in sales volume. Yuga also profits handsomely from secondary sales fees on the millions of dollars traded over Bored Apes wearing the diamond patch.
The patch is just one of many elements that demonstrates Yuga’s utter absence of any narrative responsibility to an audience which invested an astounding amount of equity into their promises.
The Yuga Labs PR team offered this response to my inquiries:
“Our company and founders strongly condemn the spread of hate, in any form, against any group. Period. We’re focused on building and lifting up the community, not on the incoherent ramblings of a small group of for-profit conspiracy theorists who are cherry-picking data points to create false and defamatory stories about us.”
I was confused by the irrelevance of Yuga’s response (hatred is not the issue at play here), but they did not respond to my follow-ups for clarification. I should note that my writing is all free, so I am unsure if “for-profit conspiracy theorist” was directed towards myself or towards someone else.
Over one month ago, I notified the co-founder of Yuga Labs, Greg Solano, about the similarity between his company’s Bored Ape artwork and the Bandidos MC intellectual property branding. Solano (also known as “Gargamel”) did not respond to my messages.
Nubla, owner of Nicky Nickels, was photographed with both Solano and Aronow at Apefest in June. The founders of the BAYC are obviously aware that people are leaning into the motorcycle club aspects of their Apes, including the Bandidos 1% patch.
If Nubla is a member of the Bandidos MC — then I wouldn’t say he needs any intervention from Yuga. If he isn’t though, then Yuga’s silence — their indifference to a misguided, risky LARP — feels like a cruel joke.
After seventeen months of ignoring thoughtful and honest criticisms, Yuga’s absence of explanation or discussion is looking and feeling a lot like willful negligence. In that silence, the Bored Ape 1% patch raises important questions:
How can Bored Ape investors own and commercialize an image that someone else already owns?
Is it ethical for a corporation to sell investors commercially licensable artwork without providing an appropriate degree of legal or cultural context? If this was an unforeseen issue, couldn’t Yuga provide holders the option to change the artwork?
Why did the founders of Yuga Labs trifle through so many cultures with such little degree of dignity for social origins, context, and authenticity? And why are they so afraid to simply speak about their personal creative choices?
Yuga Labs is recklessly racing to a revealing reckoning.