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Marc Jacobs Argues Nirvana Logo Isn’t Copyrightable

Nov. 27, 2019, 3:59 PM

Fashion designer Marc Jacobs International LLC argued that the surviving members of Nirvana can’t sustain their copyright claims against it because the band’s “smiley face” logo isn’t copyrightable.

The logo merely combines a “simple emoticon” with the band name, Marc Jacobs said in a Nov. 26 Los Angeles federal court filing. In a separate filing on the same day, Marc Jacobs argued the logo also wasn’t a valid trademark.

Nirvana sued Marc Jacobs for copyright and trademark infringement for allegedly using the logo on its “Bootleg Redux Grunge” clothing line. The court earlier rejected Marc Jacobs’s argument that the band failed to plead that it owned the copyright because late frontman Kurt Cobain created the logo and never transferred it.

In its new counterclaims, Marc Jacobs argues that the band’s copyright registration is invalid because the logo isn’t copyrightable. The registration is “composed of familiar symbols or designs and/or words and short phrases such as names, titles, and slogans, and thus are not subject to copyright protection,” Marc Jacobs says.

Marc Jacobs says that the Compendium of U.S. Copyright Office Practices cites both “the name of a band or performing group” and “simple emoticons such as the typical smiley face” as examples of uncopyrightable elements.

The counterclaims also argued that the registration is invalid because the logo was created by “multiple different authors” and “covers multiple different works published separately at different times, yet was registered as a single work.” Marc Jacobs also maintained that Cobain never transferred the copyright to the band.

In its answer to Nirvana’s complaint, also filed Nov. 26, Marc Jacobs also argued that the logo couldn’t function as a trademark. It said the U.S. Trademark Office rejected the band’s attempt to register the logo in August because it was “merely a decorative or ornamental feature of Plaintiff’s goods.”

Kelley Drye & Warren LLP represents Marc Jacobs. Kendall Brill & Kelly LLP and Rimon PC represent Nirvana.

The case is Nirvana LLC v. Marc Jacobs Int’l LLC, C.D. Cal., No. 2:18-cv-10743, counterclaim filed 11/26/19.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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