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Instead, trademark law demands the ability of the trier of fact “to think through the consumer and see the marketplace only as the consumer sees it.”2 Seeing through the eyes of the average consumer is easier said than done, however, as evident in the wide variety of judicial conceptions of consumer capabilities.3 The judge must always worry that their sense of mark similarity or product proximity. [...] For example, a group of researchers recently complained that survey evidence fails to take into account the relative certainty of a respondent’s judgment of similarity.31 As currently used, the researchers argued, surveys are too blunt of a tool to deserve much credence in determining the outcome of a claim of infringement. [...] The presence of oxygenated hemoglobin—the protein that carries oxygen in the blood—changes the magnetic properties of the blood, which in turn affects the local magnetic field in the vicinity of the active brain regions. [...] Our Experiment The goal of our experiment was to test whether the degree of suppression observed in the object-sensitive area of the brain could be used to construct a brain-based index of perceived visual similarity.46 To create a realistic simulation of legal cases, we chose two scenarios involving potential trademark infringement in the United States. [...] The second advantage of passive viewing is that it enables blinding of the participants (and potentially administrators of the experiment) to not only the purpose of the study, but also the need to rate or compare the products and their associated trademarks at all.