In this week's post, we see as entertainment and fashion continue to look to the past for inspiration while simultaneously hoping to profit off of public nostalgia, Nirvana has scored a legal win as its lawsuit against Marc Jacobs will continue on despite Marc Jacobs’s motion to dismiss. Brands should be aware that courts will consider all factors in infringement cases, refusing to limit their analysis to official registrations alone.

Nirvana Beats Marc Jacobs’s Motion to Dismiss

Fashion giant Marc Jacobs and grunge music icon Nirvana have been squaring off in court over claims of copyright and trademark infringement.  In the latest chapter, the court dismissed a motion by Marc Jacobs to dismiss Nirvana’s lawsuit, holding that Nirvana has demonstrated enough substantial similarity to support its claims of infringement.  

At the heart of the case is a smiley face (“Happy Face”) that Nirvana has copyrighted.  Nirvana has used a yellow smiley face with ‘X’s’ as the eyes and a wavy line as the mouth with a tongue sticking out as part of its brand for the past twenty-five years.  With the smiley face at the foundation, Nirvana has launched t-shirts and merchandise that play off the artwork, often using yellow lines on black background and other distinctive elements that Nirvana claims Marc Jacobs has now infringed upon.  

Nirvana further argues that because Happy Face has come to symbolize the goodwill that Nirvana has built as an entertainment act, Marc Jacobs’s actions not only qualify as copyright infringement of Happy Face, but as trademark infringement as well.  As such, Nirvana also alleges trademark infringement and false designation of origin over Happy Face.

Read the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.