New Study Proposes Using Brain Scans To Assist In Assessing Confusion Between Trademarks

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