Colddate v Colgate the trademark battle

What you need to know (in a nutshell)

1. Determining trademark infringement is a complex and controversial process that requires proving confusing similarity between two brands. The current approach relies on self-reporting, which is vulnerable to biases and manipulation.
2. Legal scholars have been exploring alternative measures to assess perceived similarity, including using neuroscientific tools such as MRI scanners to measure brain activity in response to repeated stimuli, offering more reliable measurements than traditional consumer surveys.
3. While neuroimaging technology may not easily replace existing methods and does not provide clear-cut answers, incorporating insights from neuroscience into law and legislation could foster interdisciplinary dialogue, improve understanding, and pave the way for the emerging field of Neurolaw.

Full Article

Determining trademark infringement often proves to be a complex and contentious affair, as it necessitates the demonstration of confusing similarity between two brands. This challenge is further exacerbated by the reliance on self-reporting, a method susceptible to manipulation and biases. Consequently, legal scholars have sought alternative means of evaluating perceived similarity to enhance the process. One potential solution resides in applying neuroscientific tools to examine the brain directly.

The use of repetition suppression has been explored - a phenomenon in which the brain’s response to repeated stimuli weakens over time as if losing interest or deeming them unimportant - to address this issue. We employed MRI scanners to measure activity in brain regions responsible for sight, sound, attention, and memory while rapidly presenting participants with pairs of images. These findings were then juxtaposed with consumer surveys undertaken by each party’s expert witness, ultimately demonstrating that neuroscience offers far more reliable measurements than simply soliciting opinions on what constitutes “similarity.” It is worth noting, however, that the costlier neuroimaging technology is not easily poised to supplant traditional methods currently in use, nor does assessing an individual’s mental state inherently furnish clear-cut answers, leaving judges with the discretion to make decisions based on these insights and determine the extent to which neuroscience should inform cases.

Nevertheless, we maintain that expanding how science contributes to legal reform and legislation will ultimately enhance everyday life, fostering interdisciplinary dialogue and promoting a better understanding of how to incorporate the technologies available to court systems worldwide. In doing so, we pave the way for the future field of Neurolaw.