I came across this interesting paper (https://www.science.org/doi/10.1126/sciadv.abo1095 ) over the weekend that attempts to use neuroscience techniques to measure consumer confusion between two marks and might become a new form of evidence in trademark cases.
In class, we learned that consumer surveys can sometimes be used to demonstrate whether there is confusion between two marks. Not surprisingly, surveys can sometimes be biased depending on whether they are administered by plaintiffs, who are trying to show confusion between two marks, and defendants, who are trying to refute that there is confusion. The goal of the study’s authors was to provide a more objective method of assessing confusion.
To do so, they used fMRI, which is an indirect method of measuring brain activity. fMRI can be used to assess whether a subject can discriminate between two stimuli, in this case trademarks. When presented with two identical marks at different points in time, brain activity patterns exhibit a high degree of similarity. When trademarks have a high degree of visual similarity, there is also high convergence between brain activity patterns. Activity patterns diverge as the marks become more visually dissimilar. Thus, comparing the level of similarity of brain activity patterns elicited by two marks provides a neuroscientific measure of confusion that is based on our ability to visually discriminate between two stimuli.
Interestingly, the authors found that this neuroscientific measure of confusion tracked well with the visual similarity of the two marks, regardless of whether the marks were presented in the context of biased surveys. They were able to show that participant’s survey responses could be influenced by pro-plaintiff or defendant wording, but the fMRI visual discrimination signal remained highly correlated with the level of visual similarity between two marks.
fMRI measurements of confusion would likely either be admitted as expert evidence, or at least would require expert testimony to explain, and courts have been hesitant to rely on expert evidence in trademark cases in the past. However, courts may be more likely to admit fMRI studies about consumer confusion because they still put consumer perspective first. It will be interesting to see how courts respond to a measure that essentially reduces consumer confusion down to the ability to visually discriminate between two stimuli. As the authors note, visual similarity of two marks has the largest impact on confusion, but it is not the only contributing factor. The test could be missing other important contextual factors that contribute to confusion, so might be insufficient to show confusion on its own.
The authors also present the study as being a more objective method of measuring confusion, but its still totally possible to design a biased fMRI study. Plaintiffs wishing to show confusion might select a sample of predominantly confused dads, while defendants could select people who have a high degree of experience with the products of interest. Thus, it will be important for courts to pay attention to how samples in fMRI studies were selected.
My final thought is that because fMRI is so expensive and not accessible to most people, it would likely only be large brands using this type of evidence which might lead to unfairness. However, provided fMRI evidence meets the admissibility requirements for expert evidence, especially as a novel science, as laid out in Mohan, Trochym, White-Burgess and others, I doubt that a court would decline to admit the evidence on that basis alone. In any case, I’m very curious to see if this type of evidence ever makes its way into court during a trademark case!
Communications Law