Brain Scans & Survey Evidence: Wave of the Future?

Welcome to Lanham Act Surveys for Lawyers, your resource devoted exclusively to making survey evidence discussions fun and informative. We provide insights and timely updates to help guide trial counsel in developing consumer surveys for use in federal courts, the TTAB, and other ports of call where trademark and advertising disputes are routinely litigated.

Brain Scans & Survey Evidence: Wave of the Future? Op. 1, No. 5

A study published last month in Science Advances suggests a novel piece of evidence to aid the fact finder in trademark infringement cases: brain scans. Yes, brain scans. Before you dismiss this week's edition as some sort of fanciful Ides of March Vulcan Mind Meld, read on to learn more about this intriguing study completed by a team of researchers from the University of Virginia, University of California, Berkeley, and the University of California, San Francisco

Lanham Act Surveys for Lawyers caught up with three of the study's authors, Zhihao Zhang, Ming Hsu, and Andrew Kayser. We asked several questions about this "brain scan" study and where this type of research may someday fit in the overall trademark litigation ecosystem. Below is a summary of our conversation.

1.   Your study proposes the use of "brain scans" in trademark cases to help the trier of fact assess whether two trademarks are "visually similar." Can you provide a bit more context for this?

In neuroscience, it is well established that brain activity can be studied to assess whether a subject perceives "visually similarity" between two stimuli. This assessment can be made by using a process called "repetition suppression." For example, when an individual is shown two identical stimuli--one right after the other--the individual's brain activity reduces when it sees the same stimulus for the second time, as if it gets "bored" or wants to conserve its energy. But, once you start making alterations to the second stimulus, this “suppression” of the brain activity eases. The more different the second stimulus is to the first, the stronger the brain’s response to the second stimulus becomes. Therefore, we can use the degree of suppression of brain activity as a lens into how similar the two stimuli are as perceived by the subject. We understand that in trademark cases, whether two trademarks are "visually similar" is an important factor for the jury to consider, so we thought using well-established principals from neuroscience could be brought to bear on this issue.

2. Whose brains would be "scanned" and how is this accomplished?

Much like other scientific research, there would be a randomized selection of individuals that would volunteer to participate in a study for a given case. They would consent to allow MRI imaging of their brain activity as they are shown the stimuli in question. For future applications, depending on the nature of the products in question, one may recruit participants from a more specific demographic segment representing the customers for such products.

3. Are you advocating brain scans replace consumer surveys?

Not at all. We understand that consumer surveys are used in trademark cases to test whether respondents express confusion, deception, or mistake when shown the allegedly-infringing trademark. Our study does not speak to the issue of confusion. It is much more narrowly focused on the degree of similarity (or dissimilarity) between the trademarks at issue in a given case.

4. Consumer surveys and expert testimony are already expensive enough in trademarks cases. Wouldn't this just add more complexity and expense to the litigation process?

One of the potential benefits associated with a study like ours is that the researcher would not need a large sample in order to draw scientifically-valid conclusions. Based on existing research and methodologies used in neuroscience, a sample of about 20-30 individuals is all it would take to conduct a valid study. So, we are not talking about hundreds of participants--a few dozen individuals would suffice. More broadly, we believe that brain scan data could provide important validation and support for consumer survey data, especially when the court is presented with dueling surveys from both sides with contradictory evidence (which happens a lot).

5. Is there anything else you think our readers should know about this study?

We view our research and conclusions as a "first step" in the process of someday having this sort of neuroscience presented in a court of law. In any given case, we would need to partner with trial counsel to ensure that any research conducted satisfies all necessary criteria for it to be admitted into evidence and considered by the jury or the ultimate decision maker. We welcome the opportunity to dialogue with counsel as to whether a research method like ours could be useful.