EXPERIMENTS WITH REFERENCE TO ILLEGAL IMITATION
It is perhaps not without interest
to turn into a by-path at this point of our road.
All the illustrations which we have picked out so
far have referred to strictly economic conditions.
But we ought not to forget that these economic problems
of commerce and industry are everywhere in contact
with legal interests as well. In order to indicate
the manifoldness of problems accessible to the experimental
method, we may discuss our last question, the question
of packing and of labels, in this legal relation too.
All the packings, covers, labels, trademarks, and
names by which the manufacturer tries to stimulate
the attention, the imagination, and the suggestibility
of the customer may easily draw a large part of their
psychological effectiveness from without, as soon
as they imitate the appearance of articles which are
well introduced and favored in the market. If
the public is familiar with and favorably inclined
toward an article on account of its inner values or
on account of its being much advertised, a similar
name or a similar packing may offer efficient help
to a rival article. The law of course protects
the label and the deceiving imitation can be prosecuted.
But no law can determine by general conceptions the
exact point at which the similarity becomes legally
unallowable. This creates a situation which has
given rise to endless difficulties in practical life.
If everything were forbidden which
by its similarity to an accredited article might lead
to a possible confusion in the mind of the quite careless
and inattentive customer, any article once in the market
would have a monopoly in its line. As soon as
a typewriter or an automobile or a pencil or a mineral
water existed, no second kind could have access to
the market, as with a high degree of carelessness
one economic rival may be taken for another, even if
the new typewriter or the new pencil has a new form
and color and name. On the other side, the purchaser
could never have a feeling of security if imitations
were considered as still legally justifiable when the
difference is so small that it needs an intense mental
effort and careful examination of details to notice
it.
The result is that the jurisdiction
fluctuates between these two extremes in a most alarming
way, and this seems to hold true in all countries.
In theory: “There is substantial agreement
that infringement occurs when the marks, names, labels,
or packings of one trader resemble those of another
sufficiently to make it probable that ordinary purchasers,
exercising no more care than such persons usually
do in purchasing the article in question, will be deceived.”
But it depends upon the trade experts and the judges
to give meaning to such a statement in the particular
case, as the amount of care which purchasers usually
exercise can be understood very differently.
Sometimes the customer is expected to proceed with
an attention which is most subtly adjusted to the
finest differences, and sometimes it is taken for
granted that he is unable to notice even strong variations.
It is clear that this uncertainty which disturbs the
whole trade cannot be eliminated as long as the psychological
background has not been systematically studied.
Mere talking about the attention of the customer,
and his ability to decide and select, and of his observations
and his habits in the spirit of popular common-sense
psychology, can never secure exact standards and definite
demarcation lines. The question is important
not only where imitations of morally doubtful character
are in the market. Even the most honest manufacturer
is in a certain sense obliged to imitate his predecessors,
as they have directed the taste and habits of the
public in particular directions, and as the product
of his company would suffer unnecessarily if he were
to disregard this psychical attitude of the prospective
customers. The economic legal situation accordingly
suggests the question whether it would not be possible
to devise methods for an exact measurement of the
permissible similarity, and this demand for exactitude
naturally points to the methods of the psychological
experiment. E.S. Rogers, Esq., of Chicago,
who has thoroughly discussed the legal aspect of the
problem, first turned my attention to the psychological
difficulty involved.
When I approached the question in
the Harvard psychological laboratory, it was clear
to me that the degree of attention and carefulness
which the court may presuppose on the part of the customer
can never be determined by the psychologist and his
experimental methods. It would be meaningless,
if we tried to discover by experiments a particular
degree of similarity which every one ought to recognize
or a particular degree of attention which would be
sufficient for protection against fraud. Such
degrees must always remain dependent upon arbitrary
decision. They are not settled by natural conditions,
but are entirely dependent upon social agreement.
A decision outside of the realm of psychology must
fix upon a particular degree in the scale of various
similarity values as the limit which is not to be
passed. The aim of the psychologist can be only
to construct such a scale by which decisions may be
made comparable and by which standards may become
possible. The experiment cannot deduce from the
study of mental phenomena what degrees of similarity
ought to be still admissible, but it may be able to
develop methods by which different degrees of similarity
can be discriminated and by which a certain similarity
value once selected can always be found again with
objective certainty. After many fruitless efforts
I settled on the following form of experiments, which
I hope may bring us nearer to the attainment of the
purpose.
A group of objects is observed for
a definite time and after a definite interval another
group of objects is offered for comparison. This
second group is identical with the first in all but
one of the objects, and this is replaced by a similar
one. The question is how often this substitution
will be noticed by the observers. I may give
in detail a characterization of the set of experiments
in which we are at present engaged. We are working
with picture postal cards, using many hundred cards
of different kinds, but for each one we have one or
several similar cards. As postal cards are generally
manufactured in sets, it is not difficult to purchase
pairs of pictures with any degree of similarity.
Two cards with Christmas trees, or two with Easter
eggs, or two with football players, or two with forest
landscapes, and so on, may differ all the way from
a slight variation of color or a hardly noticeable
change in the position of details to variations which
keep the same motive or the same general arrangement,
but after all make the card strikingly different.
The first step is to determine for each pair the degree
of similarity, on a percentage basis. To overcome
mere arbitrariness, we ask thirty to forty educated
persons to express the similarity value, calling identical
postal cards 100 per cent and two postal cards as
different as a colored flower piece and a black picture
of a street scene O. The average value of these judgments
is then considered as expressing the objective degree
of similarity between the two pictures of a pair.
After securing such standard values, we carry on the
experiments in the following form. Six different
postal cards, for instance, are seen on a black background
through the opening of a shutter which is closed after
5 seconds. The six may be made up of a landscape,
a building, a head, a genre scene, and so forth.
After 20 seconds the same group of postal cards is
shown once more, except that one is replaced by a
similar one, instead of one church another church building,
or instead of a vase with roses a vase with pinks.
If the substituted picture has the average similarity
value of 80 per cent and we make the experiment with
10 persons, the substitution may be discovered by 7
persons and remain unnoticed by 3. We can now
easily vary every one of the factors involved.
If instead of 6 cards, we take 10, it may be that only
4 out of 10 persons, instead of 7, will discover the
substitution, while if we take 4 cards instead of
6, perhaps 9 persons out of 10 will recognize the
difference under these otherwise equal conditions.
Only an especially careless observer will overlook
it. But instead of changing the number of objects,
we may change the periods of exposure. If we
show the 6 cards only for 2 seconds instead of 5 seconds,
the number of those who recognize the difference may
sink from 7 to 5 or 4, and if we make the time considerably
longer, we shall of course reach a point where all
10 will recognize the substitution. The same
holds true of the shortening or lengthening of the
time-interval between the two presentations.
The third variable factor is the similarity itself.
If instead of one church, not another church, but a
theatre or a skyscraper is shown, that is, if the similarity
value of 80 per cent sinks down to a similarity of
60 per cent or 50 per cent, the number of those who
recognize the substitution will again become larger;
if, on the other hand, the substituted card shows the
same church, only from a slightly different angle,
bringing the similarity value up to 90 per cent or
95 per cent, the number of observers who recognize
the substitution may sink to 2 or 3. To make the
experiments reliable, it is also necessary frequently
to mix in cases in which no substitution at all is
introduced.
If these experiments are varied sufficiently
and a large mass of material brought together, we
must be able to secure definite formulae. We
may find that if the critical card appears among 6
cards, is shown for 5 seconds, and the group is again
exposed after 20 seconds, 80 per cent of the subjects
will recognize the substitution of a similar card,
if the degree of similarity is 30 per cent, but only
60 per cent will recognize it if the degree of similarity
is 70 per cent, and only 30 per cent will recognize
it if the degree of similarity is 90 per cent.
These are entirely fictitious figures and are only
to indicate the principle. If such an exact formula
were definitely discovered, we should still be unable
to say from mere psychological reasoning what similarity
value is legally permissible. If the rules against
infringement are interpreted in a very rigorous spirit,
it may seem desirable to prohibit imitations which
are as little similar as those postal cards which
were graded as 40 per cent in our similarity scale,
and if the interpretation is a loose one, it may appear
permissible to have imitations on the market which
are as strongly similar as our postal cards graded
at 80 per cent in our similarity scale. All this
would have to be left to the lawmakers and to the judges.
But what we would have gained is this. We could
say: if our object exposed for 5 seconds in a
group of 6 other objects is replaced after an interval
of 20 seconds by an imitation and this change is recognized
by 8 persons among 10, the degree of similarity is
30 per cent and if it is recognized by 3 out of 10
subjects, the degree of similarity is 90 per cent.
In short, from any percentage of subjects who under
these conditions discovered the substitution, we could
determine the degree of similarity, independent of
any individual arbitrariness. If such methods
were accepted by the trade and the courts, it would
only be necessary, to agree on the percentage of similarity
which ought to be permitted, and all uncertainty would
disappear. There would be no wrangling of opposing
interests; it would be possible to find out whether
the permitted limit were overstepped or not with an
exactitude similar to that with which the weight or
the chemical constitution of a trade commodity is
examined. Certainly the experiment establishes
here conditions which are very different from those
of practical life. The customer who wants to buy
a particular picture postal card which he saw once
before and to whom the salesman offers a similar one,
suggesting that it is the same, is facing only one
card and not a group of six. But in practical
life the card which be has seen was not observed with
the definite intention of keeping the memory picture
in mind, and months may have passed since it was seen.
The memory picture which the customer has in his consciousness
when he seeks the particular card is much weakened
by this circumstance too. We secure this weakening
artificially by the arrangement of the experiment
in placing the card in a group of six or ten and exposing
them for a few seconds only. The force of attention
and the corresponding memory-value are by this distribution
diminished in a definite degree in the case of every
single card.
The investigation must include a careful
study of the size of the groups, of the time-relations,
of the percentage of correct answers, all under the
point of view of greatest fitness for practical application.
In the Harvard laboratory the research has been carried
on partly with such picture material, partly with word
material, and partly with concrete objects. Whatever
the details of the outcome may be, we hope that the
work will lead to results which may, indeed, make
such a psychotechnical use possible. Its principles
and formulae might easily be adjusted to any marketable
material. As a matter of course, if in future
the courts were ever to accept such psychological,
experimental methods, it would be intolerable dilettantism
if such experiments were carried on by lawyers and
district attorneys. It is as true of this economic
legal question as of many other legal psychological
problems that its introduction into the courtroom
can become desirable only when psychological experts
are engaged and called in the same way as chemical
or medical experts are invited to the court.
On the other hand, there is surely not the slightest
desire on the part of psychologists to be dragged into
humiliating performances like those which not only
handwriting experts, but even psychiatric specialists
have had to undergo repeatedly in sensational court
trials. The day for the expert activity in the
courtroom will came for the psychologist only when
the country has attached the expert to the court and
has eliminated the expert retained by the plaintiff
or the defendant. But this general practical
question as to the position of the psychologist in
the courtroom and as to the need of a psychological
laboratory in connection with the courts would lead
us too far aside.