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Smells Like Copyright Infringement

John Gilberston \ January 31, 2019

It has often been said that every fashion trend comes back into style, eventually.  The cycle not only seems to be alive and well, but also fertile grounds for litigation.  Just last week, Nirvana filed suit against clothing designer Marc Jacobs in California federal court, alleging copyright infringement for Jacobs’ unauthorized use of the Nirvana smiley face as part of a new clothing line.  Entitled the “Redux Grunge Collection,” the line celebrates Jacobs’ work with Perry Ellis in 1993, when he “boldly put grunge on the runway.” The collection features several items which contain the iconic Nirvana “Smiley Face” logo, except that the X’s representing the face’s eyes have been swapped for an “M” and a “J” to denote the designer’s name.  The face is otherwise identical.

Jacobs also devised a marketing campaign to promote the collection, which incorporates other Nirvana references.  This includes a meme posted on Mr. Jacobs’ Tumblr page of Kurt Cobain performing the song “Smells Like Teen Spirit,” as well as a print advertisement featuring Jacobs wearing the “Smiley Face” t-shirt above the words “Come As You Are,” the title of a well-known Nirvana song.  

Included as defendants in the suit are Saks Fifth Avenue and Neiman Marcus, both of which are currently selling the clothing line.

In its complaint, Nirvana LLC alleges that “a significant portion of the consuming public assumes that all goods or services that bear the logo are endorsed by or associated with Nirvana.”  It goes on to assert that the designer’s unauthorized use of its logo and other works constitutes an intentional effort to mislead the public into believing that Nirvana endorses the collection.  The band claims this has caused it to suffer irreparable injuries by “threaten[ing] to dilute the value of Nirvana’s licenses with its licensees for clothing products.” The band is seeking injunctive relief and monetary damages.   A full copy of the complaint can be viewed here.

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