What was the subject of your doctoral research?
“Trade name law, and more particularly Dutch trade name law. This comes under intellectual property law. Intellectual property rights are protected in pretty much the same way in the various European countries, which is handy, considering the amount of cross-border trade. Trade name law is a special exception in this respect, as it is still drafted on the domestic level. The Act has not been amended much since it was drafted in 1921. This will cause problems down the track, because there’s no denying that our world has changed considerably in the last century.
“As part of my research project, I analysed the entire Trade Name Act. What was the legislature seeking to achieve with this act, how did it come into being, and how do we feel about that now? Maybe our economy and society have changed to such an extent that we also view trade name law differently, and maybe the Act is in need of a revision.”
How did you conduct that study?
“It was quite the challenge, because very little has been published on trade name law in the last few decades, which meant I could only use case law as a source, to check whether the Act has resulted in any strange court orders. Since case law often concerns highly factual matter, it’s not always easy to discern a clear trend in it. In the end, I read a thousand court orders, and I did notice a few trends. My supervisor told me early on in the process that it might be a good idea for me to make a suggestion for a revision of the act at the end of my study. So, partly to gain some inspiration for that, I decided to compare the Dutch system with the way trade name law has been used in Germany.”
Are there major differences between the various European countries?
“Yes, they are quite significant. When I first embarked on my research project, I attended a trade name law session at a conference in Prague. It lasted about two or three hours, and by the end, we hadn’t even arrived at an agreement on how to define a trade name. Furthermore, in the Netherlands the acts governing trademarks and trade names (trade names are the names of businesses, whereas trademarks are logos used to distinguish between products and services – ed.) are quite different, but in Germany they are reasonably well aligned.”
How is this act causing problems?
“During my viva (PhD defence ceremony – ed.), I brought up a 2014 case as an example. In this case, a party who ran a website called ‘kleding.nl’ tried to get another party banned from using the name ‘kleding.com’. In trademark law, one of the main rules in effect stipulates that you can only obtain a valid trademark if the logo has distinctiveness; it must be somewhat original. There is no such requirement in trade name law, which meant that ‘kleding.nl’ won the case. The Trade Name Act was drafted to prevent the public from being confused, but these days, it seems much more geared towards protecting the interests of the first person to choose a particular name. I’m not sure that’s justifiable. It makes sense that the gap between trademark law and trade name law be bridged to some extent. That’s one of the main conclusions I drew in my study.
“It so happens that right now, the Dutch Supreme Court is dealing with a case that may present an answer to the question as to whether trade name law should have a distinctiveness requirement. The outcome of that case may determine the future of trade name law. The timing of that case is absolutely wonderful, but they may find themselves thinking, ‘Nice, all this stuff that this Chalmers guy wrote, but in actual fact, we completely disagree.’ That would be a pity.”
What made you want to conduct doctoral research on this subject?
“I’d been a lawyer for several years, and every time I ran into an issue like this, I’d think, how is this even possible? I’m definitely not the type who always knew he wanted to get a PhD, and I suspect some people will be surprised to hear that I ended up doing this. I wasn’t exactly a devoted student. But once I started working, I discovered a passion for intellectual property law that sometimes went beyond the folders on my desk. I sometimes collaborated with the man who ended up becoming my supervisor, and I asked him whether I might be accepted as a PhD student, because I knew he was a professor in Rotterdam. He immediately thought it was a good idea, but also tried to talk me out of it, because he’d seen too many lawyers who were trying to get a PhD on top of their jobs drop out prematurely.”
Was the combination of those two things manageable for you?
“You have to be flexible. Sometimes I was incredibly busy, so I’d have to put my dissertation on the back burner for a while. I’m not the first person at my law firm to get a PhD. Others told me that they’d never have gotten started on their research if they’d known in advance what it’s like to get a PhD on top of working as a lawyer. Those were not very encouraging things to hear. Fortunately, my own experience wasn’t like that. I have no regrets whatsoever. However, I do think you should only consider getting a PhD if you have the right motivation. If people want to get a PhD because they think it will help their reputation in the market, I think they’re going to have a very rough time of it. What helped me, I think, was the fact that I was intrinsically motivated to conduct research and was supported by those around me. When I embarked on my PhD, I had some long discussions with my wife, because we knew it was going to be a pretty intensive process. I consider myself lucky that she has given me the opportunity to do this in these last few years. Things don’t exactly get any easier when the folks at home complain every single time you don’t have time to do something.”
The photographer told me that you had some difficulty fitting your name on the wall of the Sweat Room (a room where graduates are allowed to write their names on the wall when they are awarded their degree certificates – ed.).
Laughs: “No matter how short your name is, I think it’s always hard to find an empty space on that wall. However, that needn’t stop you if you have a marker with a big felt tip. I think my name will be on that wall for a while.”
