In the Law360 article “Can Brain Scans Build On Consumer Surveys In IP Disputes?” Knobbe Martens trademark and copyright litigation practice co-chair Lynda Zadra-Symes commented on the rationale behind using consumer surveys in court proceedings – and how a recently studied alternative might not prove effective at this time.
The article covers research findings published in 2023 based on an experiment in which researchers monitored consumers’ brain scan activity to measure their recognition of visual similarity among packaged goods. According to the article, the study concluded that “visual similarity typically exerts the greatest weight on a court’s judgment regarding consumer confusion,” so the researchers proposed such brain scans could potentially be used as admissible evidence in trademark and trade dress disputes.
In response, Zadra-Symes predicted, “It’s going to be a long time before a court ever allows any of that type of evidence,” explaining that often trademark disputes center on “what you see with your own eyes” and “not what some expert is telling you exists in somebody’s brain scan.”
While she acknowledged that consumer surveys can be “an imperfect science,” she also maintained that they can help alleviate the difficulty of “getting actually confused customers into the courtroom.”
Read the full article here [subscription required].
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