Trademark infringement occurs when a trademark that is identical to or deceptively similar to an already registered trademark is used without authorization. It is a violation of the exclusive rights that are granted to the owner of a registered trademark. Measures against trademark infringement are included in the trademark laws of several countries.

It is often difficult to determine whether a trademark has been infringed and the extent of infringement. The primary reason is that establishment of infringement necessitates evidence of confusing similarity between the two brands in question. This evidence is often produced by parties in infringement suits in the form of consumer surveys, which find that the trademarks compared are similar or dissimilar. These surveys are however criticized as being manipulated and based on leading questions put to a chosen group of people, and hence often not acceptable as evidence of similarity/ dissimilarity of trademarks. Most legal systems base their decisions of trademark infringement on the question of whether a “reasonable person with average intelligence” or a “typical consumer” would perceive the trademark sufficiently similar to another, so as to cause confusion. Even though it seems simple, Courts have had difficulty reaching a decision since there is no clear definition of a “reasonable person” and there are also no specific standards or factors that help measure similarity between brands. Due to this, judges often depend on their own beliefs and judgement, rather than external evidence when addressing these issues, leading to bias in several instances.

Neuroscientific evidence is being taken into consideration  in legal decision-making process, especially in relation to understanding criminal culpability or evaluating a person’s mental state while committing an offence. But the findings of neural imaging are not always accepted by Courts, as a decision cannot be made based  solely on the results of a brain scan or other neuroscientific data. Lately, neuroscience data has started playing a role in intellectual property law, especially in cases of trademark infringement. A survey was conducted by the researchers of University of Berkely to determine if a brain scan can help in assessing whether one product is similar to another.

The survey was conducted with the help of 870 participants who were shown pairs of images consisting of Reese’s Peanut Butter Cups and an alleged copycat, i.e., Reese’s Sticks, and also a common laundry detergent and its counterpart. MRI scanners were used on the participants to examine activity in the part of the brain that processes visual objects. The researchers also developed a neural index of products visual similarity to one another, based on a phenomenon known as repetition suppression due to which a maximum amount of response reduction was expected if the second product was exactly the same as the first and minimum reduction if the two were completely different. By calculating the degree of response reduction, the similarity of the two brands from the perspective of a human brain was determined. The survey results showed that it is independent of any bias, that is usually present in consumer surveys.

However, the method of applying neuroscience data only provides a better standard of measuring similarity between two trademarks, the final decision is to be made by the presiding judge who may decide on whether to consider neuro imaging data as evidence in a particular case or not. The application of neuroscience in law has disadvantages too such as the fact that the judges may not always be aware of the scientific terms and techniques used in such evidence. Also, it is impractical to suggest  collection of neuroscientific evidence in each and every infringement case, as it is costlier than conducting a customer survey and also, it cannot be done on a large number of people at the same time. Therefore, while it helps the Courts in determining the similarity between the trademarks, it has practical limitations, but its inputs cannot be dismissed as it can be applied not just in trademark infringement cases, but also in other fields of intellectual property law such as Copyright, Patents etc. The contribution of neuroscience could broaden and improve the quality of evidence relied upon, while deciding matters related to intellectual property infringement.

By Shwetha S Menon