Recognition in context: Implications for trade mark law

Abstract

Context effects in recognition have played a major role in evaluating theories of recognition. Understanding how context impacts recognition is also important for making sound trade mark law. Consumers attempting to discriminate between the brand they are looking for and a look-alike product often have to differentiate products which share a great deal of common context: positioning on the supermarket shelf, the type of store, aspects of the packaging, or brand claims. Trade mark and related laws aim to protect brands and reduce consumer confusion, but courts assessing allegations of trade mark infringement often lack careful empirical evidence concerning the impact of brand and context similarity, and, in the absence of such evidence, make assumptions about how consumers respond to brands that downplay the importance of context and focus on the similarity of registered marks. The experiments reported in this paper aimed to test certain common assumptions in trade mark law, providing evidence that shared context can cause mistakes even where brand similarity is low. Keywords Recognition memory . Context . Global matching . Trade mark lawContext effects in recognition memory have been studied for over 40 years. 1 The role of context in a match of a test probe with memory played a prominent role in the development and testing of the Global Matching Models (Clark & Gronlund, 1996;Humphreys, Pike, Bain, & Tehan, 1989). Context effects continue to be of interest in dual process theories of recognition, with contextual information potentially playing a role in both the familiarity and recollection components of the theories (Hockley, 2008). However, context effects are still not well understood.The present paper seeks to contribute further to understanding these effects. This is significant not only in theory but has important real-world applications, because memory can be important to the determination of legal questions. One example commonly explored in the literature is eyewitness identification evidence, but in this paper we establish a significant applied need for understanding the impact of context effects because of their implications for trade mark law and other areas of the law that are concerned with enabling consumers to reliably identify desired products and avoid confusion when acquiring products and services.Consumers are frequently challenged to discriminate between the brand they are looking for and a look-alike product. This can be difficult especially when the look-alike product has things in common with the sought-for brand -that is, has common context. For the purpose of understanding how consumers recognize a product that is displayed on a shelf or depicted on a website we consider context to include the physical location, the shoppers' understanding of the physical location (e.g., an upmarket retail outlet), and any aspects of the 1 In the recognition literature context includes the learning location (study room), internal states (mood), the subject's understanding of the situation (psy...

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