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.'
There are often different opinions between judges and juries in trademark cases about how similar two brands in question actually are, leading to wide disparities in the application of the law. In a paper published this month in Science Advances, Hsu and colleagues aimed to add a more scientific measure through the use of brain scans—employing functional magnetic resonance imaging (fMRI) along with a specialized technique called repetition suppression (RS).
“Our method is an attempt to provide a more scientific way to answer these questions, in order to remove or reduce inefficiencies and uncertainties that exist under the current system,” said Hsu, who wrote the paper with an interdisciplinary group of scholars including former Haas post-doctoral researcher Zhihao Zhang, now of Darden School of Business, University of Virginia, Dr. Andrew Kayser of UC San Francisco, Femke van Horen of Vrije University Amsterdam, and Mark Bartholomew of University at Buffalo Law School.
What is 'similarity'?
The standard according to the law is whether a 'reasonable person' would find two trademarks similar, but it doesn’t define what similar means.
“Similarity is an incredibly hard thing to measure in an objective way,” said 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.”
Often that evidence takes the form of consumer surveys, and not surprisingly, plaintiff surveys invariably find that the two trademarks are similar, while defendant surveys show they are different. “Judges have a lot of experience with these situations, and have developed some degree of cynicism,” Zhang said. Adds Hsu: “Oftentimes they just say, I don’t believe any of you, I’m going to go with my own gut. It’s easy to sympathize with these judges, who just throw up their hands.”
Asking the brain, not the person
In their paper, the researchers demonstrate how directly looking 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. 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.
“We don’t have to ask them any questions at all, or even to deal with what their definition of similar is,” said Hsu. “This is a critical advantage over the common survey-based approach often fraught with controversy.”
“Judges and legal scholars are wary of potential biases in survey data presented to the court, and rightfully so,” said Zhang. This is because the need to ask questions and to require respondents to report their own perceptions provides ample opportunities to inject bias. “There is no gold standard in the law about what background information the respondents receive, how the questions are phrased, and what criteria of ‘similarity’ should be followed, but they can all change the results substantially. Asking the brain, not the person, gets rid of all of these concerns.”
“This approach also provides another important benefit, which is that our participants are blind to the goal of the study,” added Kayser. In fact, even the experimenter administering the study doesn’t need to know its purpose, which will make the study a “double-blind” one like the rigorous clinical studies in drug development. “This is yet another way to reduce bias in our approach.”
Indeed, when they checked the results of the neuroimaging against survey results that are intended to be pro-plaintiff, pro-defendant, or more neutral, they found the brain-based measure can reliably pick out the more neutral survey results, supporting the fact that the brain scans can provide a more objective measure of similarity.
The study suggests that this kind of evidence could be provided as a supplement to survey evidence to give a judge or jury confidence the surveys are accurate. “It’s almost like doing a spot check with the neural data to validate the survey results and show you aren’t doing them in an irresponsible or biased way,” Hsu said.
Scientists provide the ruler, courts draw the line
Importantly, the brain-based measures don’t take away the need for judgment by the court. “This still doesn’t say how similar is too similar,” said Kayser. “Our job as scientists is to provide a better ruler. It’s still up to the judge to decide where to draw the line.”
While this study only looked at visual trademark cases, the researchers say this kind of neural measures hold promise for a wide range of legal applications similarly revolving around people’s mental reactions— for example, determining copyright infringement in music cases, or determining how a reasonable person would judge obscenity, negligence, or other legal issues.
“It’s striking how often people’s opinions matter in the courts, and how often this standard of a ‘reasonable person’ is applied in the law,” Hsu said. “While we are not there yet, one can imagine a future where we ask the brain to help us answer these difficult questions.”