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,[53] 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.
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