Trademark Violation Court Battles Could One Day Be Settled With Brain Scans

When brands sue others over similar logos or trademarks, their usual argument is that the offending marks will cause confusion among consumers.

The process following that is typically long-drawn-out because courts base their decisions on whether a “reasonable person” will be misled by two opposing trademarks. That’s easier said than done. Talk to the next reasonable person beside you, and you’ll learn you have differing opinions even about the weather. In the same vein, courtroom verdicts get overturned all the time as judges and lawyers don’t share the same views over the same set of evidence.

A team of researchers led by Zhihao Zhang, a former Berkeley Haas postdoctoral researcher now on the faculty of the Darden School of Business, University of Virginia, is proposing to use brain scans as an objective measure for such disputes—an intellectual way to handle intellectual property, so to speak.

“Similarity is an incredibly hard thing to measure in an objective way,” explains Zhang. “Making things worse, in the adversarial legal system, two opposing parties each hire their own attorneys and expert witnesses who present their own evidence.”

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The team cites a legal row between Colgate and a newer brand called Colddate, which sold its tubes in similar red packaging. “You might think this is clearly a copycat brand,” notes Ming Hsu, William Halford Jr. Family Chair in Marketing at the Haas School of Business, UC Berkeley. However, Colgate-Palmolive ended up bowing down to the lookalike because the judge determined their brandings were not “substantially indistinguishable.”

Outlining their research in the Science Advances journal, the scholars have proposed utilizing functional magnetic resonance imaging (fMRI) along with a specialized technique called repetition suppression (RS) to establish similarity in infringement suits.

“Asking the brain, not a person, could reduce—if not eliminate—these inconsistencies,” elaborates Zhang.

To illustrate the usefulness of brain imaging in things like logo spats, the scientists showed test subjects some pictures of brands and supposed knockoffs, and placed the individuals in fMRI scanners. It was important that the participants were not aware of the experiment’s objective.

The study is based on previous research that affirmed how, when the brain comes across an image that’s similar to one it has seen, it suppresses activity as it believes it has already seen it before. The team is convinced that you can objectively determine resemblance by measuring the amount of repetition suppression (RS) between brains.

The researchers assert that neuroimaging demands about the same cost as brands conducting surveys to ask people if they deem two logos to be alike. Plus, with brain scans, there’s no need to ask leading questions about similarity, which limits bias.

Although the experiment only compared visual trademarks, the scientists assert that neuroimaging can be applied in other legal affairs where people’s mental reactions are crucial, such as validating if a song has violated another track’s copyright.

The team contends that the technique won’t leave judges without a job. Rather, neuroimaging could be employed as a supplemental “spot check” to back more subjective reasoning.

“Our method still doesn’t say how similar is too similar,” highlights Dr Andrew Kayser of UC San Francisco, a member of the team. “Our job as scientists is to provide a better ruler. It's still up to the judge to decide where to draw the line.”

[via Phys.org and Haas School of Business, cover illustration 157714908 © Radius06 | Dreamstime.com]