Cognate's Trademark Blog

Neuroscience the future of trademark?

Sounds exciting doesn’t it?  We wish we could tell you more  but unfortunately  all we have is the google alert and a link to a World Trademark Review piece, which is, unfortunately , behind a paywall.


Groundbreaking paper suggests neuroscience could transform trademark strategies – both inside …

World Trademark Review (blog)

The paper, released last month, predicts that so-called “neuromarks” – a neural map unique to each brand – could become crucial sources of evidence in trademark disputes and provide a biological baseline for the basic questions at the heart of trademark law. The paper – titled “Neuromarks” – was …

But we have managed to find the abstract for you…


Minnesota Law Review, Forthcoming / University at Buffalo School of Law Legal Studies Research Paper No. 2017-020

57 Pages Posted: 9 Mar 2018 Last revised: 11 Apr 2018

Mark Bartholomew

SUNY Buffalo Law School

Date Written: March 6, 2018


This Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminals’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural map unique to each well-known brand — a “neuromark” — into evidence. With the neuromark at their disposal, courts could potentially abandon the crude proxies for consumer perception that guide modern trademark doctrine. The current tests for trademark distinctiveness, likelihood of confusion, and dilution will all change, but will these changes be good for trademark law? By itself, measurement of consumer perception does not reveal how courts in trademark disputes should account for that measurement. New insights into the functioning of the consuming mind make a searching interrogation of the rationales behind trademark law more imperative than ever.

Keywords: trademarks, intellectual property, neuroscience, dilution, psychology, evidence

Suggested Citation:

Bartholomew, Mark, Neuromarks (March 6, 2018). Minnesota Law Review, Forthcoming; University at Buffalo School of Law Legal Studies Research Paper No. 2017-020. Available at SSRN:


We also dug up this 2008 paper authored by Rebecca Tushnet and entitled

Gone in 60 Milliseconds: Trademark Law & Cognitive Science

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