Consumer surveys are viewed by some judges as “extremely artificial.” In last year’s historic decision in Jack Daniel’s Properties Inc. v VIP Products LLC, U.S. Supreme Court Justice Sonia Sotomayor amplified this view when she wrote a concurrence emphasizing that courts should use surveys with “particular caution” when dealing with parodies or other trademark uses implicating the First Amendment. She cited that she worried that "cleverly designed surveys" may "artificially prompt" confusion among consumers, and said surveys should not completely displace other likelihood-of-confusion factors in trademark litigation.
Today, surveys have evolved from once being conducted in person, to mainly being completed online. To boost the reliability of surveys, legal and medical scholars are introducing scans that measure people's brain activity when they are repeatedly shown similar-looking products.
When asked about the likelihood of this method becoming a common practice, Finnegan partner Mark Sommers told Law360 that the idea that brain imaging can show whether an individual sees similarity between products is "an interesting proposal" that could see its first use in cases where a party is trying to bolster its survey results or undermine someone else's.
"I don't see this coming into prime time soon," he added. "But it could be the type of evidence where you could put up an expert and say, 'XYZ found this using this proven science of neuroimaging, and this is what the results say.' The results would be left for the [judge or jury] to figure out whether or not that evidence lends support or undermines the survey results that were conducted in a normal way."
Read “Can Brain Scans Build on Consumer Surveys in IP Disputes?”
