Turn that frown upside-down!

March 29, 2019, By

Designer Marc Jacobs is shaking up the fashion world again!

In December 2018, the estate of rock band Nirvana filed a copyright infringement lawsuit against renowned fashion label Marc Jacobs for using their signature ‘happy face’ logo on their t-shirt. The logo was created by the band’s frontman the late Kurt Cobain and, as it was sported by thousands of teens all over the world in the 90s, it caused the logo to symbolise the goodwill associated with Nirvana.

Marc Jacobs features the happy face image in his Redux Grunge Collection, recreating the image using his MJ initials as the face’s eyes and the word ‘HEAVEN’ above the face. Although Nirvana has a registered a copyright for the logo, Marc Jacobs’s lawyers have recently filed for a dismissal of the case, claiming the copyright registered is not solely for the smiley face but the design as a whole, comprising of the Xs as eyes, squiggly line smile and tongue, and the band name. Their argument is therefore that they are not infringing on any copyright in the logo as their design is not an exact replica of the Nirvana design. It’s all getting quite technical now and there are definitely no happy faces from either side so we will certainly be keeping an eye out on how this case unfolds!

Briffa Comment

We all know Fashion trends tend to recycle every couple of decades and there is never really anything new under the sun in the world of fashion, so why can’t we all just get along?

Well, the law on copyright protects the expression of an idea and not the idea itself, so multiple people could have the same idea (e.g. to produce a smiley face design) but it is only the expression of that idea (i.e. the particular smiley face design) that is protected by law.

In addition, the law will only intervene where it is proven: (1) that actual copying has taken place (although striking similarities between the original and the alleged copies are likely to give rise to an inference of copying); and (2) that a substantial part (in quality, not quantity!) of the earlier work has been incorporated into the infringing work.

In this instance, the striking similarities (in terms of colour, style and overall design) between the Marc Jacobs smiley face and the Nirvana smiley face would appear to give rise to an inference of copying, it remains to be seen whether those striking similarities will be found to constitute a substantial part of the earlier work (or whether the popularity of Nirvana’s smiley face logo alone is enough to have Marc Jacobs’s design thrown out!).

Briffa are experts in all areas of intellectual property law and practice and, in particular, we have a wealth of expertise and experience in helping individual artists and designers to identify, protect, commercialise and enforce their valuable IP. If you have an intellectual property issue, question or dispute and would like some preliminary advice, please do not hesitate to contact Briffa on [email protected] or 020 7288 6003 to arrange a complimentary consultation.

Joshuanne Amachie, Paralegal

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