The band is suing the designer over an item in its Bootleg Redux Grunge collection.

Marc Jacobs may lose its shirt in a lawsuit from Nirvana, as a California federal judge is allowing the band's lawsuit over a happy face tee to move forward.

In December 2018, Nirvana sued the fashion line for copyright infringement, false designation of origin, trademark infringement and unfair competition. The band claims a Marc Jacobs shirt copies a design its late leader Kurt Cobain created in 1991 with the intent to make consumers think Nirvana endorsed the designer's Bootleg Redux Grunge collection. (See the shirts side-by-side, below.)

Marc Jacobs in March filed a motion to dismiss the complaint, arguing, among other things, that the band doesn't explain how or when Cobain transferred the rights in his design and that the two designs aren't sufficiently similar.

Five months after a June 10 hearing, U.S. District Judge John A. Kronstadt has denied the motion, finding the complaint sufficiently alleges Nirvana owns the copyright registration and that the only "discernible difference" in the faces is the use of "M" and "J" as eyes instead of two X's.

First, let's start with similarity. Kronstadt found that the asymmetrical circle of the face, the relatively wide placement of the eyes, the distinctive squiggle of the mouth and the stuck-out tongue are enough to distinguish the happy face from a generic smiley.

"It is also noteworthy that the Accused Products have combined this protectable artwork 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," writes the judge.

Kronstadt also found Nirvana's ownership as alleged to be sufficient to survive a motion to dismiss.

"Although the allegation as to Cobain's 1991 creation of the Happy Face may suggest that he was the 'author' in whom 'title vests initially' … this does not preclude the possibility that Nirvana, Inc. later obtained the right to claim ownership," writes the judge. "The adequacy of Nirvana's 'chain of title' is instead an issue to which Defendants may respond on its merits through discovery and subsequent proceedings."

Marc Jacobs also alleged the copyright is invalid, saying that the date of first publication listed on it is inaccurate because the design was first published on a poster that advertised an album release party for Nevermind. The band argues that such a use isn't a "publication" under the Copyright Act and using the date the design was put on a shirt is sufficient.

Kronstadt agrees that it is possible the poster was used in ways that wouldn't have constituted a publication and finds that the validity or invalidity of a registered copyright shouldn't be established on a motion to dismiss.

The designer also argued the band's trademark claims weren't adequately pleaded and are preempted by the Copyright Act, but Kronstadt again sided with Nirvana, finding it has plausibly alleged trademark use over the past 25 years and that there's a likelihood consumers would be confused by the similarity.

The full opinion is posted below.