Brain scans could be used to assess brand similarity in trademark disputes, according to a paper published Feb. 8 in the journal Science Advances.

Neurological responses to brands can be leveraged to determine how similar consumers perceive brands to be, a more objective approach than current ones, said Zhihao Zhang, assistant professor of business administration at the University of Virginia Darden School of Business and former postdoctoral scholar at the Haas School of Business.

“Under the current system, one important form of evidence is that of consumer surveys, but that is also known to be quite sensitive to subtle variations in how one phrases the surveys,” said Ming Hsu, a co-author of the paper and associate professor of business administration at the Haas School of Business, in an email.

According to Hsu, the prosecuting and defending sides of a trademark lawsuit often use contradicting survey evidence.

Companies often imitate features of well-known or popular brands to get a “free ride,” but determining brand similarity in court proceedings is challenging, Hsu noted in the email.

Repetition suppression, a neurological phenomenon that occurs when you present the same stimulus to a brain twice in a row, can be wielded to combat this, said Zhang, lead author of the paper.

“If you present the same stimulus to a brain twice very quickly in time, the brain’s response to the second presentation of the same stimulus will be weaker,” Zhang said.

Using this method, researchers can show consumers trademark brands followed by possible copycat brands. If the brands are the same, the response to the second stimulus, the copycat brand, will be significantly weaker, Zhang said.

Using brain scans as an approach to this problem will help remove bias, since surveys can be “double-blind.” Participants would not be told about the purpose of the study and experimenters performing the study would not need to ask questions, potentially influencing results with their own bias, Zhang said.

“We can look directly at the neural responses to a trademark,” Hsu said in the email. “Our study shows that it is possible to use brain scan to deliver these key benefits.”

Although this type of study could potentially be used as evidence in trademark disputes, the legal community — or courts — must determine where to draw the line, Zhang noted. He added that trademark lawyers have expressed interest in this approach.

This research has implications for the expansion of neuroscience within the field of law, as it has generally only been used in criminal law in studying whether an individual is responsible for a crime, Zhang said.

The main drawback of using brain scans in court cases is cost, which makes large sample sizes difficult, Zhang noted. However, the data can be used alongside other methods with large sample sizes, such as consumer surveys, Hsu said in the email.

“​​There is a lot of promise in introducing these methods into actual legal practice,” Zhang said.