Brain scans could be the best witness in trademark infringement cases

By our News Team | 2023

Human evidence can be highly fallible when possible trademark infringements are being considered by courts. Scientists have a solution.

Imagine you’re browsing the toothpaste aisle and see next to Colgate a new brand called Colddate, packaged in a box with similar colours and designs. “You might think this is clearly a copycat brand,” said Ming Hsu of the University of California, Berkeley.

Yet in a real-life trademark infringement case involving these two brands, Colgate-Palmolive lost the suit, with the judge saying they were “similar” but not “substantially indistinguishable”.


Photo by Tima Miroshnichenko from Pexels

There are often different opinions between parties in trademark cases about how similar the brands in question actually are, leading to large inconsistencies in the application of the law. 

In a paper published this week in the journal Science Advances, Hsu and academic colleagues propose a more scientific measure through the use of brain scans – employing functional magnetic resonance imaging (fMRI) along with a specialised technique called repetition suppression (RS).

“Asking the brain, not a person, could reduce – if not eliminate – these inconsistencies,” explained lead author Zhihao Zhang, a former UC Berkeley postdoctoral researcher. The study’s other authors include Dr Andrew Kayser of UC San Francisco, Femke van Horen of Vrije University Amsterdam, and Mark Bartholomew of University at Buffalo Law School in the US.

What is ‘similarity’?

The standard according to the law is whether a ‘reasonable person’ would find two trademarks similar, but it usually doesn’t define what ‘similar’ means.

Often the evidence brought by the opposing parties takes the form of consumer surveys, which have been shown to be susceptible to manipulation – for example, through the use of leading questions. 

“There is no gold standard in the law about what background information survey respondents receive, how the questions are phrased, and what criteria of ‘similarity’ should be followed – all  factors that can change the results substantially,” Zhang said.

Putting brains on the witness stand

In their paper, the researchers demonstrated how looking directly into the brain may help solve this conundrum. They put participants in fMRI scanners and rapidly showed them pairs of images consisting of the main brand and a supposed copycat brand. 

Previous research has consistently shown that when presented with two similar images, the brain suppresses activity for the second image, perhaps out of efficiency, thinking it’s already seen the image. By measuring the amount of repetition suppression (RS) in brain activity for the second image, the researchers determined how similar a person found the two images.

The resulting approach provides an important benefit: Participants are blind to the goal of the study, which further reduces bias. “This is because we don’t have to ask them any questions at all or tell them what it means to be similar or not,” explained Hsu.

This kind of evidence could be provided as an additional ‘spot check’ to survey evidence, giving a court of law confidence the surveys are accurate, Hsu added. The cost of using neuroimaging is comparable to compiling and presenting survey data in legal cases.

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    Dr Kin Kariisa

    Group CEO - Next Media

    Dr. Kin Kariisa is an extraordinary force at the helm of Next Media Services, a conglomerate encompassing NBS TV, Nile Post, Sanyuka TV, Next Radio, Salam TV, Next Communication, Next Productions, and an array of other influential enterprises. His dynamic role as Chief Executive Officer exemplifies his unwavering commitment to shaping media, business, and community landscapes.
    With an esteemed academic journey, Dr. Kariisa’s accolades include an Honorary PhD in exemplary community service from the United Graduate College inTexas, an MBA from United States International University in Nairobi, Kenya, a Master’s degree in Computer Engineering from Huazong University in China, and a Bachelor’s degree in Statistics from Makerere University.
    Dr. Kariisa pursued PhD research in Computer Security and Identity Management at Security of Systems Group, Radboud University in Nijmegen, Netherlands. As a dynamic educator, he has shared his expertise as a lecturer of e-Government and Information Security at both Makerere University and Radboud University.

    Dr Kin did his PhD research in Computer Security and Identity Management at Security of Systems Group, Radbond University in Nigmegen, Netherlands. He previously served as a lecturer of e-Government and Information Security at Makerere University in Kampala, Uganda and Radbond University in Netherlands.

    Dr Kin did his postgraduate courses in Strategic Business Management, Strategic Leadership Communication and Strategies for Leading Successful Change Initiatives at Harvard University, Boston USA.

    • Other current and previous roles played by Dr Kin Kariisa:
    • Lecturer of e-Government and Information Security to graduate students at Makerere University, Kampala and Radbond University in the Netherlands
    • Director of Eco Bank Uganda Limited, one of the largest banks in Africa
    • Chairman of the National Association of Broadcasters, an umbrella industry association for all Television, Radio and online broadcasters in Uganda.
    • Chairman of Board of Directors of Nile Hotel International, that owns the leading hotel in Uganda, Kampala Serena Hotel.
    • Chairman of Board of Directors of Soliton Telmec Uganda, the leading telecom company in Optic fibre business managing over 80% of optic fibre in Uganda.