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"Any Fool Can See That These Two Trademarks Are Different"
The Role of Cognitive Science in Intellectual Property Infringement Disputes

John Senders an Marc Green

Click For A pdf "Human Factors In Intellectual Property Law Disputes", presented to the Toronto Intellectual Property Group, April 2007.

In Canada and the United States there are laws on the registration of trademarks and trade names (Kodak, Xerox, Thermos), of shapes (the Coca Cola bottle) and of "get ups" (the decor of Starbucks coffee shops). All of the laws use words and phrases ("confusing" "passing off" "imitation" and the like) whose meaning ultimately must rest on the outcome of some kind of measurement procedure. Somebody must be confused (or likely to be so); somebody must have something passed off on her (or be likely to have it done); and there must be a way of measuring or estimating the level of this confusion or passing off.

As recently as 30 years ago in some jurisdictions it was possible that a suit claiming that one trademark was confusing with another would be resolved by a judge's subjective opinion about the similarity or differences between the two and whether the similarity was sufficient to confuse the public.

What's Wrong with Letting Judges Decide?

If the foundation of real estate is "location, location, location," then the basis of perception is "context, context, context." Human judgments of similarity and confusion are not absolute. They are always made relative to situational factors such the viewer's knowledge, goals, and expectations. When visual perception is involved, judgments are further affected by background, attention and memory. As a result, likelihood of real-world confusion cannot be easily judged in the courtroom.

In recognition of this fact, practice has now changed. The responses of "the Average Canadian (or American) of Average Intelligence" (ACAI) once would be dismissed as hearsay. Today, courts recognize that these responses are facts which experts use to form opinion.

Why Intellectual Property Law?

Trademark and tradename law are based on conflict between the rights of the possessor of a mark, a name or a reputation and a desire on the part of another to use a mark or a name which is similar to or imitative of the first.

Why Cognitive Science?

The conflict arises because of fundamental deficiencies in human perception, memory, and decision, and because of limitations on the speed of human processing of information. If people had perfect perception, memory and decision processes, and could perform these acts instantaneously, there would be no possibility of confusion or passing off. Any "get up" would be immediately and absolutely distinguishable from any other. There could be no infringement except that involving absolute identity. It would not be possible to be " similar enough to confuse the public and different enough to confuse the judges" - the public and the judges would be equally immune to deception.

The limitations on human information processing, in the broad sense, create opportunities to confuse, deceive, to pass off and so on. These opportunities have led to infringements and, in turn, to laws to regulate and control. The courts in their turn have had to interpret and administer the laws. Even fifty years ago, the courts might have been forgiven for not turning to the reality of the market place to find whether and to what degree confusions and the like actually exist. Judges and regulators could and did use their own judgment, based on mental models of what other people might perceive, in judging whether substantive infringement had occurred. Given the tremendous developments in cognitive theory and methodology over the last 50 years it is no longer reasonable to make such judgments in the absence of data about what actually happens in the relevant marketplace. Yet the courts have only slowly accepted the necessity for "perceptual surveying" (not opinion surveying) as the means of discovering what people are really likely to see, hear, and believe about different marks and names.

Confusion is no longer something to be speculated or opined about by judges. Instead it must be demonstrated. Modern techniques and statistical models make it possible to obtain quantitative data about the degree of similarity and confusability of two marks or names in the laboratory. As these techniques become validated in the field the use of preliminary laboratory measurement will grow and the difficulty of field work diminish.

The Merger

The two disciplines - trademark law and cognitive science - have evolved independently and must now merge. The techniques of the behavioral laboratory and the very specific demands of the law for demonstration of hitherto ill-defined and hypothetical behaviors have produced a new kind of field experiment drawn from the laboratory to answer questions relevant to the law. The courts, and the law, will inevitably follow, albeit with some delay, the new human cognitive sciences.

Mental Models of Behavior

Laws are made by legislators who (to one degree or another) have something in mind - a "legislative intent." I will call that a "mental model." The language of the law is in a sense the result of a mental model in the minds of legislators. That language must be interpreted by judges who may have their own mental models. Litigants may have still another mental model of the meaning of the words of the law . All three are permeated with reference to concepts which stem from lay awareness of human behaviour. The courts, in attempting to apply Intellectual Property law, have coped with the fact that their decisions are based on projections of what would happen in the marketplace; they must "second guess" the ACAI by means of a mental model of the capacities of the ACAI. That the judges must have such mental models is inevitable. Their rhetoric implies, even demands, that the models exist. Such models, because they were unstated and for the most part unrecognized, have been a slippery basis for the erection of a logical and consistent structure of this important branch of commercial law. Even today some courts will arrive at judgments about two competing trademarks based on their own personal perceptions of the likelihood of confusion between the marks in the minds of other persons or of whole populations of other people.

Cognitive Science and Statistical Analysis

The scientific developments of the last hundred years, and especially the last fifty years, have led to a startling increase in theory and methodology of human perceptual, memory, and decision processes. There has been a very great increase in our understanding of how errors in perception and decision arise. In recent years there has been an increasing willingness on the part of the courts to accept, or even to demand, the use of what are called "surveys" to see what might actually happen if the two marks in dispute were to coexist in the marketplace. Despite this shift from subjective to objective bases for judgment, there are many ways in which persons not expert in the appropriate behavioral and statistical sciences can misapply methodology and misinterpret results. It is especially the case that the methods of analysis of small sample statistics are almost universally misunderstood by both courts and lawyers.

This, in its turn, has led to an excess of confidence in the results of a field survey based on the formalities of the procedure rather than on the underlying logic of the dialogue between interviewer and interviewee.

The courts, faced with the difficulties of assessing field survey evidence, have also been led into attributing greater value to cases of actual confusion than is justified. Some newer methods of data gathering and analysis may overcome that defect in logic.

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