Marc Jacobs Is Really Committing to This Nirvana T-shirt Design Defense

By Brendan Menapace

After Marc Jacobs was accused of stealing the Nirvana smiley face design, the designer doubled down on his denial by claiming that he also invented grunge fashion. Sure. Jacobs is going even further now by countersuing Nirvana, claiming that the band's complaint is "invalid and unenforceable."

According to CNN, the band, via lawyers, said that the design is "virtually identical or substantially similar" to the design originally drawn up by Kurt Cobain in 1991. In November, Jacobs tried to get the case thrown out, but was unsuccessful. U.S. District Judge John A. Kronstadt added that the only "discernible difference" between the original and Jacobs' design is the fact that the latter used "M" and "J" instead of X's for eyes.

Marc Jacobs countersues Nirvana and argues that the band's case is barred because of Courtney Love's involvement. https://t.co/nxIBgqCiPl pic.twitter.com/W8dsxgq6gq

— The Fashion Law (@TheFashionLaw) December 2, 2019

We know this isn't an air-tight legal defense, but, come on. Look at these. Who in their right mind is going to look at Jacobs' design and not think it's ripped off. Parallel thought exists, but that'd just be absurd, especially 28 years after the Nirvana logo became a cultural icon.

Kronstadt agreed, giving Nirvana's legal suit permission to proceed, and claiming that though Cobain died in 1994, ownership of the design would feasibly pass on to Nirvana Inc.

Jacobs' suit alleges, however, that the surviving members of the band didn't say for sure in sworn testimony that Cobain originally created the design. Therefore, he thinks this creates an "absence of any living person with first-hand knowledge of the creation."

The Fashion Law writes:

One of the most interesting defenses is Marc Jacobs’ argument that Nirvana’s claims are barred by the doctrine of acquiescence, a legal concept that comes about when a person knowingly fails to raise any objections to the infringement of his/her rights prior to filing suit, and thus, essentially consents to such otherwise infringing use. The consenting person in this scenario? Courtney Love, the widow of late Nirvana front man Kurt Cobain and “one of the owners of Nirvana, LLC.”

Jacobs argues that Love “was in negotiations with [Marc Jacobs] to participate in the release of the Redux Grunge Collection, as well as the accused products” prior to their release, which “was a reasonable interpretation” of her consent to such use by the Jacobs brand.

According to Jacobs, Love’s knowledge of and lack of objections to its plans to use the Nirvana-inspired smiley face and other band-specific elements—and likely given Love’s longstanding relationship with the fashion brand; including her appearance in its Fall/Winter 2016 ad campaign, and her daughter Frances Bean Cobain appeared in its Spring/Summer 2017 ad—prevent Nirvana LLC from bringing such infringement claims after the fact.

But, come on. Again, we're not legal experts. But ... come on.