Nirvana's lawsuit against Marc Jacobs will move forward
The motion to dismiss also hinged on various technicalities, such as: Nirvana didn’t explain how or when Kurt Cobain transferred the rights to the band; that the copyright is invalid because the band didn’t accurately list the design’s first date of publication; and that Nirvana technically owns the copyright to a whole T-shirt with not just the happy face logo, but other text as well .
In his ruling, Judge John Kronstadt said none of those reasons were enough to justify a motion to dismiss, and that Nirvana’s original complaint was sufficient enough to move forward. Kronstadt, for instance, wrote that the only “discernible difference” between the two shirts is the use of the letters M and J for eyes instead of X’s.
He also pointed out that the Marc Jacobs shirts “have combined this protectable artwork [the happy face] with other distinctive elements of the Nirvana T-shirt, including through the use of yellow lines on black background and a similar type and placement for the text above the image on the clothing.”
Kronstadt also wrote that “the issue presented as to likelihood of confusion is not whether the marks are identical. It is whether they are sufficiently similar ‘in their entirety’ to make confusion likely… Whether a fact-finder may ultimately conclude that certain distinctions ‘render the marks dissimilar’ cannot be resolved through the motion.”
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