22. Experiments with Reference to Illegal Imitation
Munsterberg notes that imitation of the various design elements of a brand is likely a matter that is more legal than economic in nature, but it is nonetheless of interest because it does have an economic impact.
The nature of the problem is that a firm invests a great deal of effort into developing and promoting a unique identity for its products, and those who imitate are in effect seeking to muddle this identity in order to mislead consumers, to profit at the loss of the firm that worked to build the brand.
It is this matter of deceptive trade practices that require intervention - though there is the argument that similarity may be accidental or unavoidable, and the specific details of any incident are subject to dispute in the courts.
He clarifies that this is imitation of brand, rather than product. It would be unreasonable to insist that as soon as a typewriter was manufactured that no other firm could produce a device that served the same purpose - but to copy the device exactly and present it using similar visual representation is a clear attempt at deception.
He also mentions the degree to which the attentiveness of the purchaser may be counted upon. To abandon the matter to "caveat emptor" is to require customers to gain an unusual amount of knowledge and expend unusual effort to distinguish one product from another. Some knowledge and discernment is to be expected, but it is highly debatable as to what constitutes a reasonable degree of expectation.
Further, "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." How much attention they happen to pay is something psychology can investigate, but how much they ought to pay is a matter of ethical debate.
(EN: There's a great deal more nattering on this, speculating about what experiments might be conducted and how their results would likely be unsatisfactory, but his point is made above.)
He does note that "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 expresses a strong disdain for the "psychological experts" who allow themselves to be dragged into the carnival of the legal system and feels their behavior is "humiliating" and a discredit to the entire profession.