Grey Matter Meets Grey Matters: Non-Conventional Trademarks and Neuroscience

Introduction

As the limits of trademark law are stretched with the rise of non-traditional marks, questions arise on how to reliably judge them in the courtroom without succumbing to subjectivity. With hurdles faced from registration to disproving confusion, uncertainty engulfs unconventional marks, especially in India. Since these marks are far less explored vis-à-vis the traditional visual marks, perhaps the way forward is to incorporate objective tools of neuroscience as a lantern in this dim and uncharted path.

Delineating Non-Conventional Trademarks

Non-conventional marks go beyond visual elements and employ various senses to create a memorable impression on consumers. These marks deepen the consumer experience via emotional responses. For instance, the scent of freshly-cut grass from a pack of tennis balls, Yahoo!’s yodel, or Nokia’s ringtone creates a lasting association between the brand and its non-visual cues in consumers’ minds. Such cues differentiate brands in the market and aid in brand recall. Given their integral role in shaping a holistic brand image, legal protection of such marks is crucial. 

Non-traditional marks span an array of senses from scent (olfactory), sound (auditory), colour and taste (gustatory) to touch (tactile/texture), shape, motion, and holograms. Each of these has varying levels of protection, if at all, under the Indian trademark law. While colour combination marks, sound marks, shape, and three-dimensional marks have been envisioned under the Trade Mark Rules, others, like smell, taste, and touch marks, still have a long way to go. 

Under the Trade Marks Act, 1999, a trademark is a mark capable of being represented graphically. Graphical representation is a vital element for trademark registration, but owing to their nature, non-conventional trademarks fail to establish a foothold on this front. 

The requirement for graphical representation of a mark as prescribed under the Trade Mark Rules, 2017, poses a mammoth obstacle in registering non-visual marks that appeal to taste, smell, or touch. In Shield Mark BV v. Kist, the European Court of Justice (ECJ) rejected a written description of a sound mark (in words or onomatopoeia), and upheld the need for a graphical representation, severely restricting registration of non-musical sound marks. Further, in Ralf Sieckmann v. German Patent Office, the ECJ established a stern standard for graphical representation for scent marks. It is to be noted that such visual perceptibility of a mark in the form of a graphical representation is not mandated by Article 15 of the TRIPS Agreement as long as the mark fulfils the core purpose of distinguishing the goods from others. India, while having accepted sound marks, is yet to receive applications under smell or taste marks owing to the conundrums clouding them. Scent or taste marks, often functional and impermanent, complicate matters.

Neuro-Evidence Decoded 

Neuroscience employs methods such as neuroimaging and behaviour studies to gain insights into the nervous system and brain activity. Cognitive neuroscience often utilises the technique of functional magnetic resonance imaging (fMRI) to gauge brain activity patterns. Different portions of the brain are engaged in response to different stimuli. An fMRI examines the variations in magnetic fields in response to each stimulus to ascertain how the latter is perceived and processed by the brain. The fMRI, coupled with various other neuroimaging techniques, has been utilised to observe neural responses arising upon exposure to touch, taste, smell & sounds. 

Trademark law benefits from consumer psychology and behavioural neuroscience, especially in refining notions of consumer perception, confusion, and deception. The field of neuroscience has advanced to the point that the blood and oxygen levels of the brain can be studied to determine whether the consumer is thinking of a particular brand as opposed to others. Neuroimaging techniques reveal differences in the processing of the emotional (experiential) and functional (utilitarian) aspects of an advertisement. Different trademarks trigger unique neural activities across regions of the brain and can be used for differentiation. Such developments guide courts towards scientifically informed decisions over speculations on consumer perceptions. For instance, in a study conducted in the United States, participants were shown two products, namely, ‘Reese’s Peanut Butter Cups’ and ‘Reese’s Sticks’. When two products are alike, brain response drops (repetition suppression). Hence, by measuring the degree of decline in the response when subjected to an allegedly similar product, similarity/dissimilarity in infringement cases can be objectively inferred.

Merely using advertising or sales figures to assess the standing of a brand in the market may be inaccurate, as it ignores consumer associations of the mark with the goods, which are amenable to neuroimaging studies. They can highlight whether the average consumer’s memory is associating the mark with a distinguished product or is too generic to evoke a specific response. 

In some legal systems, like the United States, consumer surveys are used to check if the competing brands are similar or not; however, these suffer from consumer biases, manipulations, or leading questions. In India, the perspective of a reasonable, typical consumer is seen to evaluate similarity. This term lacks a definition and standards for factors to consider. In such a state, the judges may end up applying their own beliefs instead of actual external data to determine the confusion caused to an average consumer. 

Bartholomew, a legal scholar, has posited that in the future, it may not be a pie-in-the-sky to witness businesses mired in trademark litigations, supply neuro-evidence in the form of unique neural pathways that the mark in question elicits, to better substantiate their claims for consumer familiarity and perceptions. He termed such evidence as neuromarks. 

A word of caution needs to be sounded at this juncture concerning the tendency to overemphasise the role of consumer perception in trademark law to the detriment of other important considerations of economic policy, competition law, and freedom of trade and expression. Thus, the present article does not envision a panacean over-reliance on neuroscientific tools to inform judicial decisions on sensory marks; rather, it is posited that such tools can bridge the gaps when necessary to eliminate excessive subjective guesswork shrouded in the name of discretion when questions of consumer perception and reactions surface. These empirical studies and data can, in an evidentiary capacity, steer the discourse to a more reliable and sound decision-making in the courtroom with less room for uncertainties and assumptions. Neurological findings can be further validated by the existing market surveys to better grasp consumer confusion claims.  

Validating Non-Conventional Trademarks Through Neuro-Evidence 

Non-conventional trademarks struggle to attain the standing of conventional trademarks owing to the plethora of intricacies that reside in each instance. For an element that cannot be put to paper, any discourse associated with it is bound to lean into a hypothetical trajectory, lacking substantial evidence. However, it is imperative to note a common ground that is shared between the conventional and non-conventional trademarks: the consumer. 

Irrespective of the kind of trademark they will be subjected to, a consumer is bound to observe and interpret the mark through their understanding and form perceptions accordingly. Such an understanding cannot be alienated from the consumer, forming a vital element to trademark recognition that lies untainted by materialistic limitations. Focusing on this understanding can be key to examining non-conventional trademarks and reinforcing claims of their distinctiveness.

Consumer confusion does not find an exact definition in trademark law and largely exists on a case-by-case basis. Confusion, from a neuroscientific perspective, is a combination of numerous components and processes which are actively influenced by the surrounding stimuli. The associated interplay of such components leads to brain activity patterns of such a variance that it is, at present, rather difficult to formulate an assessment measure that applies to all. Hence, neuro-evidence can be better utilised to examine the mental state of a consumer when exposed to a trademark. 

Infusing Neuroscience into the Courtroom

Trademark litigations rely on several concepts and tests, ranging from phonetic similarity, graphical representation, and likelihood of confusion, amongst others. 

A potential trademark must be distinctive and non-confusing. Claims of confusion are often examined through the eyes of an average consumer, assessing whether a prudent individual would be able to differentiate between products bearing different trademarks. Even this vital concept remains, at best, a mere estimation of human behaviour. This widens the chasm of uncertainty created by the traditional understanding of trademarks. 

Trademarks can be considered as a form of an external cue or a stimulus which triggers a train of thought in the minds of a consumer and moulds their decision accordingly. Neurological evidence seeks to validate such estimations with scientifically backed data gathered through new technology and techniques. Such evidence provides a basis for decision-making which could aid in the analysis of consumer perceptions from their genesis.

Disputes regarding trademarks often rely on examining the constituent elements through the eyes of an average consumer. Adjudicating a matter requires a judge to think like an average consumer and reach a conclusion as to how the latter would perceive the trademarks in question. Irrespective of how diligently a judge attempts to step into the shoes of a consumer, they cannot rob themselves of their intellect and prudence. Parallelly, today an average consumer is no longer an individual who is blissfully unaware of their options. The ever-growing presence of internet-enabled smartphones has also significantly contributed to trademark recognition. A judge’s decision would be aided if an average consumer’s legitimate understanding and interpretation informed the deliberations.

Conclusion 

Neuroscientific evidence’s admissibility in the courtroom is a relatively unexplored phenomenon, with more acceptability in criminal cases presently as expert opinions as an aid. The Bharatiya Sakshya Adhiniyam, 2023, does not explicitly address neuro-evidence and thus leaves it up to the discretion of the judges, based on factors like credibility of the evidence, its reliability, and relevance on a case-by-case basis. Thus, its usage in trademark cases is circumscribed by the higher costs of neuro-technology, the need for technical expertise, the lack of specific provisions under the Evidence Law, and the risk of over-reliance on neuro-evidence. These need to be tackled carefully to adapt neuroscience into the judicial process. 

Neurological evidence does not possess the capability to erase a judge’s position in decision-making, but simply aims to assist by providing insights that were previously unavailable. The trademark landscape has to transcend its own boundaries to keep pace with the advent of technology. Though neurological evidence requires further refinement for future application, the promise it holds is too monumental to be ignored. 

As trademark jurisprudence grapples with the upcoming unconventional marks, neuroscience can better equip judicial decisions in gauging the prima facie distinctiveness of these marks in order to settle protection claims. Non-conventional trademarks, as established, stretch beyond traditional understanding and expression, which begs the question as to why they should then be assessed through conventional and archaic measures. Trademark recognition has neurological roots; hence, observations from neuro-evidence offer a perspective devoid of arbitrariness and ambiguity. 

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This article has been authored by Sarthak Tiwari and Anika Bhoot, 4th year students at Hidayatullah National Law University, Raipur. It is a part of the RSRR-Ahlawat & Associates Blog Series.