The Marc Jacobs pop-up on Madison Avenue featuring the brand's Redux Grunge collection.

The decades-old Nirvana smiley face logo is still causing strife between the band’s company and Marc Jacobs.

As Nirvana LLC’s copyright suit plays out in California federal court over the designer’s use of a similar smiley face in a grunge collection last year, the fashion brand has sought to zero in on a basic question: Who created the design?

Nirvana had sued Marc Jacobs last December, saying that it owned the copyrighted smiley face logo, a simple cartoon face with X’s for eyes and a squiggly smile with a tongue sticking out on the side. Nirvana had said that late frontman Kurt Cobain had created the logo sometime around 1991, and that the band has used it since then on licensed apparel including T-shirts, bags and hoodies. 

But Marc Jacobs is arguing that neither of Nirvana’s former members Dave Grohl nor Krist Novoselic knew if Cobain actually created the design in question, according to a joint court filing Friday in which both Nirvana and the defendants each presented their views in the case. The fashion company said that its depositions of the two musicians as part of the case were “fruitless” in determining who actually created the logo. 

“Mr. Grohl testified that he did not know who created the X-Eye Smiley Face,” according to the defendants’ position stated in the filing. “Mr. Novoselic also testified that he did not know who came up with the idea for the X-Eye Smiley Face. Mr. Novoselic further testified regarding the X-Eye Smiley Face that, ‘this image had been around.…It didn’t seem like a new idea.’” 

Nirvana indicated in the filing that it had already told the defendants that the “celebrity witnesses…were not the persons most knowledgeable on the copyright ownership issues.”     

The suit had followed soon after Marc Jacobs’ issued the “Bootleg Redux Grunge” collection in November 2018, something of a nostalgic reprise of the designer’s 1993 grunge collection. The redux collection included sweatshirts, T-shirts and socks that featured a similar smiley face design, with the initials “M” and “J” standing in for the eyes, rather than the X’s. 

Nirvana has basically argued that using this particular smiley face to evoke grunge, the cultural aesthetic and genre Nirvana has symbolized since its heyday, amounts to ripping off its intellectual property and implying a non-existent association with Nirvana. 

Marc Jacobs, which sought in March to dismiss Nirvana’s claims, had acknowledged in a court filing at the time that the doodle was indeed “inspired by vintage Nirvana concert T-shirts from the 1990s the era of ‘grunge’ fashion.” But the company took issue with Nirvana’s claims, arguing for instance that Nirvana had not shown how Cobain had legally transferred his purported rights in the artwork to Nirvana.  

U.S. District Judge John Kronstadt had ruled earlier this month that Nirvana’s claims could proceed, saying that it had made an adequate copyright claim at this stage, and that as the suit proceeds, the defendants could continue to dig deeper into how Nirvana obtained the rights to the logo.  

A representative for Nirvana indicated in a statement Monday that the company was prepared to continue litigating.  

“The non sequiturs about who designed this logo and when are nothing more than an obvious distraction,” the representative said. “The designer of the smiley face is irrelevant. Nirvana LLC owns the copyright and will continue to enforce it.” 

Nirvana’s complaint had also named Saks Fifth Avenue and Neiman Marcus Group LLC as defendants in the case, for selling the allegedly infringing Marc Jacobs products at issue. 

Representatives for Marc Jacobs and Saks Fifth Avenue could not be reached for comment Monday. A representative for Neiman Marcus declined to comment on pending litigation. 

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