Thesis Format
Monograph
Degree
Master of Studies in Law
Program
Law
Supervisor
Professor Margaret Ann Wilkinson
Abstract
American scholar, Mark Bartholomew, predicted in 2018 that a new kind of neuroscientific evidence would help businesses involved in lawsuits connect their trademarks with the public’s perception of their trademarks. Bartholomew coined the term "neuromarks’ for this evidence. Bartholomew focused on U.S. trademark law. This research demonstrates, looking at both Canada’s domestic law and Canada’s relevant international treaties and trade agreements, that such evidence has not yet been used (in 2022) in trademark litigation in Canadian courts or tribunals but that there appears to be no legal barrier to its use in future in Canada. This research notes that neuroscience literature indicates that, while Bartholomew discussed “neuromarks” as a future concept, from the neuroscientific perspective, it is already scientifically possible to obtain evidence of individuals’ connections between marks and specific goods and services: it only awaits litigators in Canadian cases introducing such evidence and Bartholomew’s “neuromarks” can become a reality.
Summary for Lay Audience
Trademarks connect the public with particular goods and services in the Canadian marketplace just as trademarks connect the public with particular goods and services in other nations’ marketplaces. The businesses that own the trademarks connected with goods and services in the Canadian marketplace rely upon the Canadian Trademarks Act and Canadian courts and tribunals to protect their rights in their trademarks. This can involve businesses in seeking to protect their trademarks in litigation either in litigation that involves the Canadian Trademarks Act or in litigation that relies upon the common cause of action known as ‘passing off’. In either case, it is often incumbent upon the businesses involved to prove the extent to which the public is aware of their trademarks in connection with their goods or services. This thesis focussed upon what kinds of evidence businesses can bring to bear to prove the connection the Canadian public has (or doesn’t have) with a particular trademark.
In 2018, American scholar, Mark Bartholomew, predicted that a new kind of evidence, based in neuroscience, could help businesses involved in lawsuits connect their trademarks with the public’s perception of their trademarks: evidence acquired through the use of neuroscientific technologies. Bartholomew coined the term ‘neuromarks’ for this evidence. Bartholomew focused only on trademark law in the U.S. In this thesis, looking at both Canada’s domestic law and relevant international treaties and trade agreements, this research demonstrates that such evidence has not yet been used (in 2022) in connection with trademark litigation in Canadian courts or tribunals but that there appears to be no legal barrier to its use in the future. This research also notes that neuroscience literature indicates that, while Bartholomew discussed “neuromarks” as a future concept, from the neuroscientific perspective, it is already scientifically possible to obtain evidence of individuals’ connections between marks and specific goods and services: it only awaits litigators in Canadian cases introducing such evidence into their legal actions and Canadian courts and tribunals can turn the concepts behind Bartholomew’s “neuromarks” into reality.
Recommended Citation
Malik, Pankhuri, "Can Novel Findings from Emerging Neuroscientific Technologies be Incorporated into Trademark Law in Canada?" (2022). Electronic Thesis and Dissertation Repository. 8522.
https://ir.lib.uwo.ca/etd/8522
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