A moron in a hurry
Encyclopedia
"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.
of Morning Star Cooperative Society v Express Newspapers Limited [1979] FSR 113. 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:
and stated that:
In the same year, it was quoted in the same context in the case of Newsweek Inc. v. British Broadcasting Corp. [1979] R.P.C. 441 by Lord Denning.
The phrase was considered in Canada
in C.M.S. Industries Ltd. v. UAP Inc., 2002 SKQB 303, where the court ruled that UAP had infringed the plaintiff's trademark. It has also been considered by other Canadian courts, which have approved of the "moron in a hurry" analysis.
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 (see Apple Corps v. Apple Computer
). 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.
Attorney Marc J. Randazza cited "A moron in a hurry" as a defense in Beck v. Eiland-Hall
for his client's use of Glenn Beck
's name in a parody
website.
Passing off
Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill....
or trademark infringement
Trademark infringement
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees...
. 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
Goodwill (accounting)
Goodwill is an accounting concept meaning the value of an entity over and above the value of its assets. The term was originally used in accounting to express the intangible but quantifiable "prudent value" of an ongoing business beyond its assets, resulting perhaps because the reputation the firm...
and brand
Brand
The American Marketing Association defines a brand as a "Name, term, design, symbol, or any other feature that identifies one seller's good or service as distinct from those of other sellers."...
of the claimant's item cannot genuinely be affected by the existence of the other.
Case law
It appears to have been used first by Mr Justice Foster in the 1978 English legal caseLegal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
of Morning Star Cooperative Society v Express Newspapers Limited [1979] FSR 113. In this case, the publishers of the Morning Star
The Morning Star
The Morning Star is a left wing British daily tabloid newspaper with a focus on social and trade union issues. Articles and comment columns are contributed by writers from socialist, social democratic, green and religious perspectives....
, a British Communist party publication, sought an injunction to prevent Express Newspapers
Daily Express
The Daily Express switched from broadsheet to tabloid in 1977 and was bought by the construction company Trafalgar House in the same year. Its publishing company, Beaverbrook Newspapers, was renamed 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:
and stated that:
In the same year, it was quoted in the same context in the case of Newsweek Inc. v. British Broadcasting Corp. [1979] R.P.C. 441 by Lord Denning.
The phrase was considered in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
in C.M.S. Industries Ltd. v. UAP Inc., 2002 SKQB 303, where the court ruled that UAP had infringed the plaintiff's trademark. It has also been considered by other Canadian courts, which have approved of the "moron in a hurry" analysis.
The phrase was revived by lawyers for Apple Computer in that company's most recent legal dispute with The Beatles
The Beatles
The Beatles were an English rock band, active throughout the 1960s and one of the most commercially successful and critically acclaimed acts in the history of popular music. Formed in Liverpool, by 1962 the group consisted of John Lennon , Paul McCartney , George Harrison and Ringo Starr...
' record label Apple Corps
Apple Corps
Apple Corps Ltd. is a multi-armed multimedia corporation founded in January 1968 by the members of The Beatles to replace their earlier company and to form a conglomerate. Its name is a pun. Its chief division is Apple Records, which was launched in the same year...
, over the appearance of Apple Computer's apple logo at certain times when using Apple Computer's iTunes Music Store (see Apple Corps v. Apple Computer
Apple Corps v. Apple Computer
Between 1978 and 2006 there were a number of legal disputes between Apple Corps and the computer manufacturer Apple Computer over competing trademark rights...
). The lawyers have publicly argued that iTunes, as a music distributor, cannot be confused with the record label
Record label
In the music industry, a record label is a brand and a trademark associated with the marketing of music recordings and music videos. Most commonly, a record label is the company that manages such brands and trademarks, coordinates the production, manufacture, distribution, marketing and promotion,...
Apple Corps. However, this dispute does not directly concern passing off
Passing off
Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill....
, which requires an assessment of misrepresentation and damage. Instead, Apple Corps contends that Apple has breached
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
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.
Attorney Marc J. Randazza cited "A moron in a hurry" as a defense in Beck v. Eiland-Hall
Beck v. Eiland-Hall
Beck v. Eiland-Hall is a case filed before the World Intellectual Property Organization in 2009 by political commentator Glenn Beck, concerning the satirical website "GlennBeckRapedAndMurderedAYoungGirlIn1990.com". The site was created by Isaac Eiland-Hall as a parody of Beck's style of commentary...
for his client's use of Glenn Beck
Glenn Beck
Glenn Edward Lee Beck is an American conservative radio host, vlogger, author, entrepreneur, political commentator and former television host. He hosts the Glenn Beck Program, a nationally syndicated talk-radio show that airs throughout the United States on Premiere Radio Networks...
's name in a parody
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
website.