The Nirvana and Marc Jacobs smiley face copyright infringement case is approaching one year since being filed. The band first took legal action against the fashion designer’s grunge collection allegedly ripping off their logo in December 2018.

With news breaking earlier this month that the case will continue despite Jacobs requesting the lawsuit be dismissed, the designer is now taking the next step in his defense. Jacobs is filing a countersuit against Nirvana, according to the Hollywood Reporter.

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The smiley face logo is used in several items in the “Bootleg Redux Grunge” collection including a T-shirt, sweatshirt and a pair of socks. Each item has replaced the classic Nirvana text at the top with “HEAVEN” in an incredibly similar font. Each of the eyes on the smiley face portion has been edited to reflect an “M” and “J” for Marc Jacobs instead of the “X’s.

Jacobs previously admitted that his design was “inspired by vintage Nirvana concert T-shirts from the 1990s.” The brand is claiming though that their design is unique enough because it was redesigned to include Jacobs’ classic logo of the “M” and “J.”

Nirvana has owned the trademark for their iconic smiley face since 1992 after Kurt Cobain reportedly created it for a 1991 Nevermind-era gig flier. However, today, Jacobs has filed a countersuit against Nirvana with claims their copyright registration is “invalid and unenforceable,” according to the Hollywood Reporter.

Jacobs’ countersuit comes two weeks after U.S. District Judge John A. Kronstadt ruled that the suit can move forward, denying Jacobs’ motion to dismiss the lawsuit back in March. The California judge stated that the only detectable difference between the two logos is the style change in the eyes.

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Judge Kronstadt also claimed that Jacobs’ design combined the “happy face” with other distinctive components of the Nirvana T-shirt. This includes yellow lines on-top of a black background and a similar font and placement of text above the image.

Attorneys representing the brand claimed the copyright was invalid at the time of the judge’s decision, but now Jacobs has officially filed suit. The legal counsel has also expressed dissatisfaction over their limited two depositions to explore how the logo was created.

In May, Courtney Love, her and Cobain’s daughter Frances Bean Cobain and survivng Nirvana members Dave Grohl and Krist Novoselic were called as witnesses. According to the latest from the Hollywood Reporter, Grohl and Novoselic testified they didn’t know who created the logo. However, Nirvana’s lawyers claim they were never asked directly if they thought Cobain was the creator.

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Now, according to the new court filing, Jacobs’ attorneys are using Cobain’s absence to their advantage.

“The apparent absence of any living person with first-hand knowledge of the creation of the allegedly copyrighted work in question, coupled with numerous other deficiencies in the 166 Registration that is the basis for Nirvana’s infringement claim are the basis for the counterclaim asserted,” the filing states.

Neither Nirvana nor their legal team have responded to the new filing.

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