Brain scans could be the best witness in trademark infringement cases

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.