The discussion on neuroscience, consumer behaviour and trade mark law showed how a deeper understanding of the human brain can be used as an additional consideration in trade mark and unfair competition disputes, particularly for lookalike brands and products.
The limitations of traditional research methods
Prof. Dr. Alexander Genevsky, Rotterdam School of Management, started the session by introducting the origins of neuroscience in business research. He explained that traditional consumer research relies heavily on self-reported data from focus groups, interviews, and surveys. While these methods have been the backbone of market research for decades, they come with significant drawbacks:
Inaccurate Self-Assessment: People often struggle to accurately identify or articulate their mental states.
Reluctance to Disclose: There's often an unwillingness to share true thoughts or feelings, especially if they may be considered socially undesirable.
Predictive Shortcomings: Individuals frequently fail to predict their future behavior accurately, known as the intention-behaviour gap.
Influence of Inquiry: Simply asking about mental states can alter the experience itself, introducing bias.
Consumer Neuroscience: The 4 Ps
The session introduced the concept of consumer neuroscience in business, focusing on four key areas:
Preferences: A wine study showed how expectations influence experience. Participants tasted identical wines but were told they differed in price. Brain scans revealed increased activity when tasting the "more expensive" wine, indicating a genuine change in enjoyment based on perceived value.
Process: Physiological measurements can optimise advertising effectiveness. By analysing brain engagement, companies can edit ads to maintain high engagement, even in shorter formats like 15-second spots.
Prediction: Neural forecasting has proven more accurate than self-reporting in predicting consumer choices. Studies with unknown music artists showed that brain data could better predict future hits compared to traditional surveys.
Perception: Our brains don't experience objective reality. Understanding how consumers perceive products can help brands identify what aspects to protect and promote.
The Subtle Power of Product Imitations
Dr Femke van Horen, Professor of Consumer Behaviour, Vrije Universiteit, The Netherlands, explored how subtle product imitations impact consumer perception:
Copycat Similarity: Moderate similarities in packaging can positively influence consumer attitudes more than high similarities.
Positive Associations: Consumers may transfer positive feelings from the original product to the imitation when similarities are subtle.
Subtle dangers: Subtle imitations often fly under the legal radar but can be more effective in the market, making them more dangerous for original brands but harder to stop.
Assessing Package Similarity with Neuroscience
Traditional methods for assessing similarity, such as judges' intuition, expert witnesses, and surveys, are all prone to bias and inconsistency. Neuroscience offers a more objective approach:
Brain Imaging Studies: Participants passively view packages in an MRI scanner without knowing the experiment's purpose. Brain activation levels indicate perceived similarity without self-reporting bias.
Objective Data: Reduced brain activation when viewing an imitation suggests a higher perceived similarity to the genuine product.
Bridging Legal Theory and Marketing Reality
The session raised critical questions:
Subtle similarity: Should legal efforts target subtle imitations rather than blatant ones?
Protection for all marks: Should only distinctive and strong trade marks receive protection, or should the net be cast wider?
Measuring similarity: How can we develop more objective, neuroscience-based methods to assess similarity?
Challenges and Opportunities in the FMCG Sector
Nigar Kirimova, from Essity GmbH, highlighted specific challenges in the Fast-Moving Consumer Goods (FMCG) industry:
Evolving consumer values: Customers now prioritise sustainability, functionality, convenience, and lifestyle alignment, in addition to quality and price.
Importance of packaging: In FMCG, packaging is crucial for conveying multiple messages and standing out on crowded shelves.
Legal Limitations:
Designs: Offer limited protection against subtle copies.
Trade marks: Broader protection is typically reserved for famous brands, leaving lesser-known brands vulnerable.
Unfair Competition Laws: Vary by jurisdiction and may not provide adequate remedies.
Data-Driven Protection Strategies
To navigate these complexities, companies should:
Leverage neuroscience: Use brain data to identify which product elements most influence consumer perception and behaviour.
Tailor legal approaches: Focus on protecting the aspects of a product that have the most significant psychological impact on consumers.
Integrate disciplines: Combine insights from neuroscience, marketing, and law to create comprehensive strategies.
Final Thoughts
This session underscored the importance of understanding the human brain in crafting effective legal and marketing strategies. By embracing neuroscience, brands can better protect their intellectual property, enhance consumer engagement, and stay ahead in a competitive market.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com