Copyright laws protect copyright holders from unfair competition. For example, in Russia
When one company sticks on its productslogo other questions do not arise. But imitation is a completely different matter. Determining how similar competitors' products, branding, slogans or advertising are and whether they are causing customer confusion typically requires expert judgment and a court or regulatory assessment.
An international group of researchers proposes to move away from such a subjective approach and use the scientific method.
Why is a new approach needed?
In trademark cases, judges and regulators often disagree on how similar the brands in question actually are, the study authors note.
For example, in 2007, a court in the United States consideredColgate-Palmolive's lawsuit against J.M.D. All-Star Import and Export. The second company launched Colddate toothpaste on the market, and the design of the package and its color looked like the famous Colgate brand. Having studied all the materials, the court came to the conclusion that although there are some similarities between the names and design of the goods, the consumer can distinguish one toothpaste from another, which means that there is no violation of competition in this.
Colgate and Colddate toothpastes packaging. Image: court decision materials
There is a similar case in Russian courts.For example, in 2021, the Altime company filed a lawsuit against Sberbank. The company believed that after the rebranding, the bank began using a logo confusingly similar to the one that Altime had been using since 2010.
The Intellectual Property Court, among other things,analyzed two images and came to the conclusion that although they are similar, but the different look and nature of the images, the combination of colors lead to the fact that the consumer does not confuse two different brands. Oltime's claim was dismissed. It is noteworthy that in the court session both companies provided the results of opinion polls, which contradicted each other.
Trademarks registered by Oltime LLC (left) and Sberbank PJSC (right). Pictures: Register of registered trademarks
What do scientists propose?
The main task in disputes related to infringementtrademark rights, to prove that the alleged infringing design is causing consumer confusion. In an article published in the journal Science Advances, the researchers propose using brain scans as a method to assess image similarity. They use functional magnetic resonance imaging (fMRI) and the perceptual priming effect.
Priming in psychology is the unconsciousand the involuntary influence of one external stimulus on a person’s perception of another. This is one of the mechanisms of implicit or hidden memory, which helps to unconsciously use past experiences. One of the variations of priming - perceptual priming is associated with improving the perception of objects similar in shape to the one presented earlier.
In practice, this means that if a personconsecutively show two identical images, the activity of his brain in the second case, when he sees something "familiar", will decrease. By measuring the level for the second image, the degree of change in brain activity associated with perceptual priming can be used to assess how similar the two images appear to people.
Did they test the idea?
For the experiment, scientists collected two setsgoods: washing powders and chocolate bars. Each of them contained both real brands and fictitious products with labels made in similar colors or with similar designs to famous brands.
Two sets of real and fictional items to explore. Image: Zhihao Zhang et al., Science Advances
The researchers conducted three independent surveys aboutconsumers' perception of the similarity of goods similar to those that are usually presented to the court by the plaintiff and the defendant. The questions in the tests were structured in such a way as to get an answer that is beneficial to each of the parties and a neutral assessment. In particular, they manipulated survey results using leading questions, wording and response options, and other methods. The study confirmed the possibility of obtaining the desired result in the survey.
The results of the similarity assessment obtained in threesurveys with questions designed in favor of the respondent (left), the plaintiff (right) and neutral (center). Image: Zhihao Zhang et al., Science Advances
As an alternative method, scientistsassessed the degree of change in brain activity during passive viewing of pictures of different brands in a “blind” experiment. Study participants, unaware of the purpose of the study, were placed in a machine that performed fMRI. The researchers showed them pairs of pictures with images of goods and recorded how their brain activity changed.
The data collected showed that usersunconsciously respond to the similarity of images, and the results are closest to the neutral version of the survey. At the same time, since the experiment was conducted in a passive and "blind" mode, prejudices and complex cognitive reactions of the participants in the experiment are excluded.
The scheme of the experiment and the results of the similarity assessment obtained during fMRI. Image: Zhihao Zhang et al., Science Advances
No more court?
The authors of the study do not think so.The new approach offers an additional tool that can replace subjective surveys used as evidence. At the same time, it does not negate the need for a court decision, which will analyze many other factors.
Our method still doesn't say how similar it is too similar. Our task as scientists is to provide the best line. But the judge still has to decide where to draw the line.
Andrew Kaiser, co-author of the study at the University of California, San Francisco
Although the study only looked atcomparing trademark similarities, the researchers believe that this kind of neural measurement has a wide range of legal applications. For example, they can be used to detect plagiarism in musical compositions, or to determine what an unbiased "reasonable person" considers obscene behavior.
In any case, the introduction of such technologies will require time, additional discussion between professional experts and interdisciplinary research.
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