A moron in a hurry

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A moron in a hurry is a legal test for trademark infringement or passing off in which a hypothetical person against whom a claimant's concern might be judged in a civil law action. The expression is used to reject a claim that two items could reasonably be confused by a passer-by: that "only a moron in a hurry" would be confused. If the items offered for sale are distinct, the goodwill and brand of one trader cannot be affected by another's.[1]

Origins[edit]

The "moron in a hurry" phrase was first used by Justice Foster in the 1978 case Morning Star Cooperative Society v Express Newspapers Limited, in which the publishers of the Morning Star, a British Communist Party publication, sought an injunction to prevent Express Newspapers from launching a new tabloid, which was to be called the Daily Star.[2] The judge ruled against the Morning Star, noting that "If one puts the two papers side by side I for myself would find that the two papers are so different in every way that only a moron in a hurry would be misled."[2]

In the same year, the phrase was quoted in the same context in the case of Newsweek Inc. v British Broadcasting Corp. [1979] R.P.C. 441 by Lord Denning.[3]

Case law[edit]

Canada[edit]

In Canada the phrase was first considered in C.M.S. Industries Ltd. v. UAP Inc. (2002 SKQB 303), where the court held that UAP had infringed the plaintiff's trademark.[4] Four years later, in Mattel, Inc. v. 3894207 Canada Inc., the Supreme Court of Canada moved away from the "moron" analysis, adopting in its place consideration of an "ordinary hurried purchase", a standard between that of a "moron" and a "careful and diligent purchaser".[5] Mattel is now the standard in Canada.

UK[edit]

The test was cited by iPhone maker Apple's lawyers in the 2006 lawsuit Apple Corps v Apple Computer, between record label Apple Corps, started by the Beatles in 1968, and Apple Inc.. According to a 1991 agreement, Apple Inc. retained the right to use Apple on "goods or services...used to reproduce, run, play or otherwise deliver...creative works whose principal content is music", but not on content distributed on physical media.[6] Apple Inc.'s lawyers argued that it was not a recording label simply because it distributed music, so it did not violate the agreement. They argued that "[e]ven a moron in a hurry could not be mistaken about" the difference between iTunes and the Apple record label. Furthermore, Apple Corps' logo was a green Granny Smith apple, whereas Apple's logo was a "cartoonish apple with a neat bite out of its side".[7]

The trial opened on March 29, 2006,[8] and the High Court of England and Wales handed down a judgment on May 8, 2006, in favor of Apple Inc.,[9] but the companies did not announce a final settlement until February 5, 2007.

United States[edit]

Attorney Marc J. Randazza cited "a moron in a hurry" as a defence in Beck v. Eiland-Hall for his client's use of Glenn Beck's name in a parody website.[10]

References[edit]

  1. ^ Bronstein, Peter (15 October 2013). "Understanding the 'Moron in a Hurry' Test: Is Trademark Law Too Complicated?". Law Office of Peter Bronstein. 
  2. ^ a b Miller, Jeffrey (2003). Where There's Life, There's Lawsuits. ECW Press. pp. 125–126. ISBN 1-55022-501-4. Retrieved 18 February 2014. 
  3. ^ "Newsweek Inc. v British Broadcasting Corp". "Report of Patent, Design and Trade Mark Cases". Oxford University Press (High Court of Justice—Chancery Division (The Stationery Office)). 1979. ISSN 1756-1000. Retrieved 18 February 2014. (subscription required)
  4. ^ "C.M.S. Industries Ltd. v. UAP Inc., SKQB 303 (CanLII) 2002". 22 July 2002. Retrieved 17 February 2014. 
  5. ^ "Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 SCR 772". 2006. Retrieved 17 February 2014. 
  6. ^ Borland, John; Fried, Ina (23 September 2006). "Apple vs. Apple: Perfect harmony?". CNET. Retrieved 1 March 2007. 
  7. ^ Associated Press (31 March 2006). "Apple Defends Its Use of Logo on iTunes Store". New York Times. 
  8. ^ "Apple Giants Do Battle in Court". BBC News. 29 March 2006. Archived from the original on 10 March 2007. Retrieved 1 March 2007. 
  9. ^ Brandie, Lars (8 May 2006). "Apple Computer Triumphs In Beatles Case". Billboard. 
  10. ^ Anderson, Nate (30 September 2009). "Memes strike back: Gerbils, gay blood elves, and Glenn Beck". Ars Technica. 

See also[edit]