A recently published study suggests that brain scans could be used as evidence in trademark infringement cases.
In Canada, a finding of trademark infringement requires that the infringing mark be confusingly similar to a registered trademark. Confusion is assessed having regard to a number of factors, an important one of which is the degree of resemblance between the trademarks.
The study used repetition suppression in the brain to assess degree of resemblance. Repetition suppression is the weakening of the brain’s response to repeated stimulus. In the study, participants were shown images of a target brand and a copycat brand while MRI scanners monitored activity in the visual processing areas of the brain. The expectation was that marks with a high degree of resemblance would show the highest amount of reduction in response, while dissimilar marks would show a minimum amount of reduction in response. The results were then compared to survey results that were either neutral, biased towards the plaintiff, or biased towards the defendant. It was found that the scans tended to align more with the neutral survey results.
While the scans may provide a useful measurement of the degree of resemblance between marks, that remains only one of the factors in assessing confusion and thus will not automatically lead to a finding of infringement. Brain scans are also more expensive to implement than the consumer surveys that are widely used in infringement cases.