Can Novel Findings from Emerging Neuroscientific Technologies be Incorporated into Trademark Law in Canada?
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.