Photo Credit: (Marc Jacobs, Getty Images/Melodie Jeng)
It doesn’t appear that designer, Marc Jacobs, will be reaching “Nirvana” any time soon.
Jacobs seeks to cancel Nirvana’s copyright registration over the band’s famed smiley face logo. At issue is Jacobs’ use of the logo on his “Bootleg Redux Grunge” t-shirts and collection. Although the marks differ in some ways, such as Nirvana’s mark having X’s for eyes with the word “NIRVANA” at the top and Jacobs’ mark having the letters “M” and “J” for eyes with the word “HEAVEN” replacing the “NIRVANA”, it is undisputable that the marks are uncannily similar.
Late last month, Jacobs filed a countersuit in the copyright and trademark infringement lawsuit against Nirvana over the true creation of the smiley face logo. Jacobs’ attorneys argued “the apparent absence of any living person with first-hand knowledge of the creation of the allegedly copyrighted work in question, coupled with numerous other deficiencies in the 166 Registration that is the basis for Nirvana’s infringement claim are the basis for the counterclaim asserted.” There is lack of proof of who the true creator is, since the alleged creator was the late Kurt Cobain. Surviving members Dave Grohl and Krist Novoselic testified previously in depositions they were unaware of who created the smiley face logo.
In Jacobs’ motion to dismiss to Nirvana’s complaint, he conceded the shirt “was inspired by vintage Nirvana concert T-shirts from the 1990s” and the shirt was unique enough because the smiley face was “reinterpreted”.
However, Judge John Kronstadt wasn’t buying Jacobs’ arguments, pointing out the “use of yellow lines on black background and a similar type and placement for the text above the image on the clothing,” finding that “the issue present as to likelihood of confusion is not whether the marks are identical. It is whether they are sufficiently similar ‘in their entirety’ to make confusion likely…Whether a fact-finder may ultimately conclude that certain distinctions ‘render the marks dissimilar’ cannot be resolved through the motion.”
What is your opinion on these marks? Are you a die-hard Nirvana fan that got confused by the similarities? Let us know!
Article by Carissa Chow