Trade mark law and cognitive psychology are both concerned with establishing the mental states of consumers: in theory then we might expect these disciplines to have a close relationship, and to be engaged in ongoing dialogue. This is not the case and on further examination, real difficulties emerge, especially arising from trade mark law’s registration system. It is not simple to reconcile the goals, and the philosophical foundations, of these two disciplines. This article makes the argument that insights from psychology can play an important role in trade mark law, but for that to happen, we need to move away from the idea that insights from psychology are only useful to decide particular disputes before the courts. A better approach is to test trade mark law at a higher level of abstraction: to test trade mark law’s assumptions about how consumers process information. Starting at this level could inform trade mark law, without disrupting the registration system.
Robert Burrell and Kimberlee Weatherall, Towards a New Relationship Between Trade Mark Law and Psychology, Current Legal Problems, https://doi.org/10.1093/clp/cuy001. Published: 27 September 2018.