A Moron in a Hurry

 

polo logo

apple dispute

A moron in a hurry‘ is a hypothetical person against whom a claimant’s concern might be judged in an English law civil action for passing off or trademark infringement.

The expression is used to reject a claim that two items could reasonably be confused by a passer-by (i.e. that even a moron in a hurry would notice the difference), on the grounds that the items are so different that the goodwill and brand of the claimant’s item cannot genuinely be affected by the existence of the other. 

It appears to have been used first by Justice Foster in the 1978 English legal case of ‘Morning Star Cooperative Society v Express Newspapers Limited.’ In this case, the publishers of the ‘Morning Star,’ a British Communist party publication, sought an injunction to prevent Express Newspapers from launching their new tabloid, which was to be called the ‘Daily Star.’ The judge was unsympathetic. He asked whether the plaintiffs could show: ‘a misrepresentation express or implied that the newspaper to be published by the defendants is connected with the plaintiffs’ business and that as a consequence damage is likely to result to the plaintiffs’ and stated 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.’

The phrase was considered in Canada in ‘C.M.S. Industries Ltd. v. UAP Inc.,’ in 2002 where the court ruled that UAP had infringed the plaintiff’s trademark. A short time later, in ‘Mattel,’ the Supreme Court of Canada moved away from the ‘moron in a hurry’ analysis, adopting in its place consideration of the ‘ordinary hurried purchasers,’ a standard between that of the ‘moron’ and one of the ‘careful and diligent purchaser.’

The phrase was revived by lawyers for Apple Computer in that company’s most recent legal dispute with The Beatles’ record label Apple Corps, over the appearance of Apple Computer’s apple logo at certain times when using Apple Computer’s iTunes Music Store. The lawyers have publicly argued that iTunes, as a music distributor, cannot be confused with the record label Apple Corps. However, this dispute does not directly concern ‘passing off,’ which requires an assessment of misrepresentation and damage. Instead, Apple Corps contends that Apple has breached the terms of a previous trademark settlement agreement. In 1991, Apple Computer agreed not to use its logo in connection with music content. Apple (which in 2007 dropped ‘Computer’ from its corporate name and is now known as ‘Apple, Inc.’) now argues that iTunes does not offer ‘content’ as it does not produce its own music.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s