Smells like IP infringement?

One of the Bootleg redux grunge products
Don't come as you are
The fashion industry is no stranger to IP disputes. In the last year, The IPKat has written about disputes involving Zara, Nike and Nike and some innovative anti-counterfeiting from Deisel (sic).

Whether it is competitor "inspiration" or a designer who inadvertently sells their name with their company the battles are myriad and go to the core of questions such as what is creativity and where the line is between standard design features and protectable IP rights.

The latest designer to follow this trend is Marc Jacobs. His eponymous company has been accused of being a little too inspired by 90s grunge in his "Bootleg Redux Grunge" collection. The collection liberally borrows from Nirvana both in terms of the band's signature logo and in its various allusions to many of their classic songs. The company's Tumblr even included a Nirvana meme at one stage but this has now been removed.

Rather than saying "nevermind," Nirvana, via its LLC, has responded to this alleged infringement by commencing proceedings in California for copyright infringement and various common law trade mark equivalents under the Lanham Act and state law. The complaint is available here.

The main focus of the dispute is on the famous smiley logo - which is frequently copied by actual "bootleggers" and is deceptively simple. Whilst there is no sign of a registered trade mark for the smiley logo, there is a US copyright registration: VA0000564166. The logo was created by Kurt Cobain in about 1991 and registered in 1993.

It is a little too early to comment on the case in detail but, in my view, on the [smiley] face of it the work is sufficiently creative to attract copyright protection. Marc Jacobs may have an uphill battle to establish that the use is sufficiently transformative for fair use (or another defence) to apply.

My perspective may be a little biased from growing up as a (not cool enough to be properly into Nirvana but nevertheless influenced by them) teenager in the '90s. Readers views, as ever, particularly from US copyright lawyers are welcome.

The famous smiley image/logo
Side note

The suit lists Mark (sic) Jacobs International LLC as the primary defendant on the front of the complaint (hopefully the typo won't be a big issue to change). Saks and Neiman Marcus have been listed as co-defendants as they sold the products in store.

I first became aware of this dispute via The Guardian.

Interested in fashion disputes? 

You can find out more about the European approach in my book, European Fashion Law: A Practical Guide from Startup to Global Success - which is published next month. There's a launch party in London on 13 Feb - details here
Smells like IP infringement? Smells like IP infringement? Reviewed by Rosie Burbidge on Friday, January 04, 2019 Rating: 5

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