A moron in a hurry
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.
The "moron in a hurry" phrase was first used by Mr 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. 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."
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. 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". Mattel is now the standard in Canada.
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 Computer 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. 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".
The trial opened on March 29, 2006, and the High Court of England and Wales handed down a judgment on May 8, 2006, in favor of Apple Inc., but the companies did not announce a final settlement until February 5, 2007.
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