Written by Fito Pando Molina, Practice Lead – Australia
How close is too close when it comes to branding? When two businesses operate in overlapping spaces, the line between inspiration and imitation can get blurry—and legally risky. One of the most colourful ways the courts have drawn that line is with what’s now known as the “moron in a hurry” test. In this post, we look at a recent case we were involved in where claims of passing off were raised, unpack what that term really means, and explore how courts in Australia (and beyond) assess whether consumers are truly being misled.
What is passing off in practice?
In a recent case in which we were involved, one of the parties (let’s call it Party A) sued the other (Party B) for, among other things, passing off. In other words: Party A alleged that Party B was deceiving the market into believing that Party B was in fact Party A, with the object of siphoning business away from Party A. The rub in this particular case was that Party A’s and Party B’s goods, whilst being capable of being used together, were completely different in form, function and price – hundreds of thousands of dollars different. The difference was such that if you were in the market for Party A’s products, there was no way that you would mistakenly end up buying those of Party B. If you need to buy a car, you are unlikely to be bamboozled into buying a set of beak pads instead.
The “Moron in a Hurry” Case
And this reminded us of the wonderfully colourful 1978 English case of Morning Star Cooperative Society v Express Newspapers, also known as the “moron in a hurry” case. Setting aside its colourful monicker, this is a leading case on the matter of passing off, and one that is often cited in the courtroom. Just like in the case of Party A and Party B above, the Morning Star sued the Daily Star for passing off, arguing that the Daily Star was unlawfully pretending to be the same newspaper as the Morning Star, with the purpose (and possible effect) of diverting readership from one publication to the other. For context, on the one hand:
The rather monosyllabic Daily Star tends towards salacious stories, football (soccer), big very-large-font headlines, a full page topless model’s photograph on page three, and rarely discusses anything so intellectual as politics – its then editor […] was described as “so ignorant he thought ‘erudite’ was a type of glue,” a description for which he brought and lost a defamation case[1].
On the other hand, the Morning Star is a far left-leaning newspaper founded in 1930 by the Communist Party of Britain (CPB), and self- described as being editorially in line with the programme of the CPB. After considering the evidence, Justice Foster famously (and unsurprisingly) found 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.”
Ever since, the moron in a hurry test has been one of the mainstays in passing off cases across common law jurisdictions, including the 2006 Apple Corps v Apple Computer case in which Apple Corps, the Beatles-founded record label sued Apple Computer for passing off – and lost as the court held that only a “moron in a hurry” could get both companies mixed up.
How does this work in Australia?
The moron in a hurry test applies in Australia too, although in slightly less catchy terms: in the 2000 case of Campomar Sociedad Limitada v Nike International Ltd, the High Court held that, in considering whether the public or a class of persons to whom a representation is made would be or would be likely to be misled or deceived by conduct, such as the making of a representation, in contravention of s 18(1) of the Trade Practices Act 1974 (now s 18(1) of the Australian Consumer Law) the court is concerned to assess the effect of the conduct complained of on reasonable members of the class (i.e., persons who take reasonable care of their own interests). Having said that, it is important to note that, when it comes to consumer deception, if there is scope for confusion to take place:
- Australian law does not require the existence of dishonesty (although establishing intention to deceive may have evidentiary value, as found in Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937)); and
- a deliberate “wink and nod”, cheeky marketing strategy might suffice for a finding of consumer deception, as held in In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (2020).
Conclusion
While the “moron in a hurry” test may sound tongue-in-cheek, it highlights an important principle in intellectual property law: context matters. Courts will look beyond surface similarities to assess whether a reasonable consumer is likely to be misled. In Australia, the standard remains firmly focused on the “reasonable person”—someone paying attention and looking out for their own interests. Still, clever branding that walks the line between homage and confusion can quickly become a legal issue, even without an intent to deceive. If your business is launching a new product, refreshing a brand, or navigating a dispute over IP rights, it’s always worth speaking with a legal expert early on. A quick check can save you from costly missteps down the line. If you have any questions about passing off, consumer protection, or broader IP issues, our team would be happy to assist.
Harris Gomez Group METS Lawyers ® opened its doors in 1997 as an Australian legal and commercial firm. In 2001, we expanded our practice to the international market with the establishment of our office in Santiago, Chile. This international expansion meant that as an English speaking law firm we could provide an essential bridge for Australian companies with interests and activities in Latin America, and to provide legal advice in Chile, Peru and the rest of Latin America. In opening this office, HGG became the first Australian law firm with an office in Latin America.
As Legal and Commercial Advisors, we partner with innovative businesses in resources, technology and sustainability by providing strategy, legal and corporate services. Our goal is to see innovative businesses establish and thrive in Latin America and Australia. We are proud members of Austmine and the Australia Latin American Business Council.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create a solicitor-client relationship, and readers should seek independent legal advice for their specific circumstances. Harris Gomez Group accepts no liability for reliance on this content.