Paul Bergen/Redferns

Paul Bergen/RedfernsDesigner Marc Jacobs is fighting back against Nirvana, which has accused Jacobs of ripping off its signature smiley face logo for the Jacobs’ Bootleg Grunge collection of t-shirts.

According to the Hollywood Reporter, on Tuesday, Jacobs filed a counterclaim, seeking to declare the band’s copyright registration of the image as “invalid and unenforceable.”

Recently, a California federal court wouldn’t dismiss the lawsuit, saying that the design of Jacobs’ tee is “similar enough” to Nirvana’s copyrighted image to allow the case to move forward.  Now, Jacobs’ lawyers are trying to prove that there’s no way to establish if late Nirvana frontman Kurt Cobain actually created the smiley face image.

According to the Hollywood Reporter, both Dave Grohl and Krist Novoselic have been deposed, and both of them testified that they didn’t know who created the logo.  Of course, since Kurt is no longer here to give his side of the story, Jacobs is attempting to use that as a reason to dismiss the case.

In court papers, Jacobs says he’s filing the new counterclaim because of “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…registration that is the basis for Nirvana’s infringement claim.”

The Hollywood Reporter notes that Nirvana’s copyright registration is presumed to be valid, so what needs to happen now is to determine which side bears the burden of proof.

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