Towards a New Relationship Between Trade Mark Law and Psychology

Speaker: Professor Robert Burrell (University of Sheffield & University of Melbourne)
Chair: Mr Justice Arnold (Chancery Division Judge)
Series: Current Legal Problems 2017-18

About the lecture:

On paper there ought to be a close relationship between trade mark law and (cognitive) psychology. Trade mark law turns on how consumers are likely to respond to signs used on or in relation to goods and services. Its ultimate concern, moreover, is with ensuring that traders do not (deliberately or otherwise) trigger particular mental states among consumers.

Psychology can provide insights into how consumers are likely to respond to things they see and hear, can help us finesse what we might mean by the mental states that trigger legal intervention (‘caused to wonder’, ‘confused’, ‘deceived’, ‘initially interested’) and tell us when one of these mental states is most likely to arise. In practice, however, insights from psychology have had little impact on development of trade mark law. Understanding of the potential relationship between the disciplines has been hampered by the fact that this question has too often been viewed through the narrow prism of the probative value that should be given to survey evidence in infringement proceedings.

This lecture will suggest that insights from psychology can play an important role in trade mark law. Articulating this role, however, needs to be handled with care and we need to first understand why trade mark law and psychology make uneasy bedfellows, despite their apparently strong overlapping fields of interest.

About the speaker:

Robert Burrell holds joint appointments as Professor of Law at the University of Sheffield and Melbourne Law School. His previous academic positions include posts at the Australian National University and King’s College London. He has also been a Herbert Smith visiting fellow at the University of Cambridge and a visiting professor at the Benjamin N. Cardozo School of Law in New York. His principal areas of interest are intellectual property and legal history. He is the author (with A. Coleman) of Copyright Exceptions: The Digital Impact (CUP, 2005) and (with M. Handler) of Australian Trade Mark Law (OUP, 2010; 2^nd ed. 2016).

His work has been cited by the High Court of Australia, the Federal Court of Australia, the Supreme Court of New Zealand, the Court of Appeal of England and Wales and in an Opinion of an Advocate General to the European Court of Justice. Outside of the academy Robert spent several years working as a registered trade marks attorney in Australia, eventually helping to establish a new boutique firm that specialises in intellectual property matters.

About Current Legal Problems:

The Current Legal Problems annual lecture series was established over sixty years ago. The lectures are public, delivered on a weekly basis and chaired by members of the judiciary.

The Current Legal Problems (CLP) annual volume is published on behalf of UCL Laws by Oxford University Press, and features scholarly articles that offer a critical analysis of important current legal issues.

It covers all areas of legal sponsorship and features a wide range of methodological approaches to law. With its emphasis on contemporary developments, CLP is a major point of reference for legal scholarship.

Find out more about CLP on the Oxford University Press website