Dirk Visser is professor of law at the University of Leiden and a lawyer with Klos, Morel, Vos & Schaap. He has litigated many important trade mark cases in the Netherlands.In his entertaining speech, Professor Visser discussed “how judges think” and drew on some of his own research from interviewing judges, as well as insights form other disciplines such as psychology and sociology.
Professor Visser – who is married to a judge – stressed the importance of seeing judges as normal people, and being aware of the influences on them. He explained how his research had shown the importance judges attach to their own experiences (such as what they can see with their own eyes), compared to comparative cases and external evidence such as public opinion surveys.
After his speech, James Nurton asked him to expand on some of the topics he had raised.
What are your main interests as a professor?
As I am part-time, I must admit the main thing I do is teach. I am also co-author of the Handbook on Copyright in the Netherlands, writing about the law as it is, without any psychological or multi-disciplinary pretensions.
I don’t have the opportunity to develop a line of research but I’ve always been interested in how things get decided. I have my theories, which I test every now and then. I have done interviews with judges but now I’ve done that I wouldn’t want to do it again.
You think psychology and sociology have a role to play in the law?
Absolutely, and as a lawyer you should read about these things. But these guys also recognise the limits of their discipline.
You talked about treating judges as human beings – do litigators overlook that?
I think all experienced litigators do recognise that, but they don’t talk about it. Many colleagues say: of course you’re right, but to talk about it takes law as a science off its pedestal. I don’t agree: law is a social interaction.
For example, if you have a trade mark case that is not about consumer products, it is much harder. I had to convince an elderly judge in the north of the Netherlands that Sensation was a famous trade mark for a huge dance party. That is almost impossible. You have to be familiar with what the court knows.
Do judges generally get it right?
I am really impressed by the quality of decisions, at least in the Netherlands, especially given how little time they have.
What about the US system where you have juries?
I think the differences might be not as great as they are sometimes made out. In criminal and complex cases, the difference is greater. But in a typical trade mark case – do they look too much alike? – I would think a jury might come to the same conclusion as a judge.
Do you think surveys still have a role to play in trade mark litigation?
It’s a very hard question. The politically correct answer is that in theory public opinion surveys should be more important than the judge’s opinion, but in practice it is almost impossible to do a perfect survey. Any public opinion survey is artificial compared to the market situation – and we all know that. But admitting that the judge’s gut feeling should be a determining factor is hard to swallow for many people.
In the end I believe a public opinion survey is no substitute for a living person deciding on his own conscience what the right decision is. It’s hard with a survey to show the reputation of a trade mark which is slightly more objective than whether it is too confusingly similar.
In practice as long as one party brings a public opinion survey, the other party might be forced to do the same. And the Dutch courts have been known to strike them both, which is a waste of money.
Now we can do cheap public opinion surveys on the internet, but they are of doubtful quality as you have panels who get questions on many different subjects.
You talked about the gut feeling that innovation is good, and imitation is not good. Is that unique to some cultures, such as Europe?
It’s possible. It might be partly biological but that’s very hard to discern. You could argue that cultures that have developed this idea of innovation being good and highly valued have been more successful. But the Greeks and Romans were well developed but did not value innovation as such – they had slaves, and did not mind not having technology. It didn’t harm them.
It can be a cultural thing – in the UK the idea of imitation being the lifeblood of competition seems to be more widely held by judges and academics. We do also have that tradition on the continent – the abolition of the guilds started in the French Revolution, but the French are now stricter on competition than the Netherlands or Germany.
Do you think this kind of research will become more important?
The interest in how judges decide goes like a pendulum. You have the legal realism approach – it goes and comes back. It is an interesting way to look at the law but it does not really solve the issues, and people move back to a stricter approach.
We might discover all kinds of things through neuroscience but at the end somebody has to decide and we have to respect that decision.
Are judges different from other people?
No, but through their work they have a higher feeling of responsibility.
Interview by James Nurton, managing editor of Managing IP and a member of the Communication & Membership Team.
Issue 039
Professor Dirk Visser gave the second annual Kay Uwe Jonas lecture at the MARQUES Team Meetings in Amsterdam this month. After his speech, James Nurton asked him a few questions.
Janice Trebble of the Education Team outlines some of its recent initiatives, and explains how MARQUES members can help.
Simonne Moodie of the Brands & Marketing Team provides a summary of the new Regulations Relating to Foodstuffs for Infants and Young Children in South Africa.
MARQUES has submitted comments on the latest developments regarding trade mark reforms in Europe.
WIPO has announced several initiatives: a new publication on the Madrid system; a revised Guide to the International Registration of Marks under the Madrid Agreement and the Madrid Protocol; and amended official Madrid forms (MM forms).
WIPO Director General Francis Gurry discussed various challenges posed to trade mark protection by the proliferation of new gTLDs earlier this month.
The theme of this year’s World IP Day, which takes place on 26th April, is Movies: A Global Passion.
Update your calendar with all the MARQUES events planned for the coming year.
In the past month, MARQUES bloggers have posted on the Trunki design case; German trade mark statistics; and the DEXEUS trade mark case in Spain, among many other topics.
