On November 8, 2019, a federal judge denied a motion by Defendant Marc Jacobs International LLC and other Defendants to dismiss Plaintiff Nirvana LLC’s copyright and trademark infringement lawsuit regarding a “smiley face” design and logo Nirvana claims to own. Nirvana’s Complaint alleges that items in Marc Jacobs’ “Bootleg Redux Grunge” clothing collection infringed Nirvana’s rights to the smiley face design and logo, which its co-founder, Kurt Cobain, created in 1991 and which Nirvana has used continuously since 1992 to identify its music and licensed merchandise. The court’s order denying Defendants’ motion to dismiss was discussed in depth here.

On November 26, 2019, the Defendants filed a Counterclaim against Nirvana, arguing that they could not be held liable for copyright infringement on numerous grounds, most notably that the smiley face logo allegedly drawn by Cobain is composed of familiar symbols, designs, words, and short phrases, and is therefore not copyrightable in the first instance. Defendants also filed concurrently an Answer to Nirvana’s Complaint, asserting numerous defenses, including a defense to Nirvana’s trademark infringement claim that the designation underlying Nirvana’s trademark claims is invalid because the U.S. Patent and Trademark Office refused to register the logo as recently as August 2019. Defendants also asserted a defense that Nirvana’s claims are barred by the doctrine of acquiescence/estoppel on the ground that musician Courtney Love, who married Cobain, was in negotiations with Marc Jacobs to participate in the release of the Bootleg Redux Grunge collection and the products at issue. Defendants argue that they invested large sums in reliance on these negotiations, and that Nirvana should therefore be estopped from alleging any infringement.