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If startup OpenAI has been feeling protective of its brand lately, it’s understandable. ThreatGPT, MedicalGPT, DateGPT, and DirtyGPT are just a sampling of the many teams to file for trademarks with the United States Patent and Trademark Office in recent months.
They are all taking advantage of the staggering popularity of ChatGPT, the chatbot launched in November by OpenAI that is based on the company’s deep learning model, the latest version of which, GPT-4, was released last month.
Not surprisingly, after filing in late December for a trademark for “GPT,” which stands for “Generative Pretrained Transformer,” OpenAI last month petitioned the USPTO to expedite the process, citing the “myriad of infringements and counterfeit applications.” ” that begin to appear. jump into existence.
Unfortunately for OpenAI, their petition was dismissed last week. According to the agency, OpenAI’s lawyers did not pay an associated fee or provide “appropriate documentary evidence to support the justification for the special action.”
Given the rest of the queue that OpenAI sits in, that means a decision could take up to five more months, says Jefferson Scher, a partner in Carr & Ferrell’s intellectual property group and chair of the company’s trademark practice group. signature. Even then, the result is not certain, explains Scher.
Certainly, he says, OpenAI has every reason to hope that it might get the patent. We asked him, for example, if OpenAI might encounter resistance given that the “T” in GPT stands for “Transformer,” which is the name of a neural network architecture first disclosed by Google researchers in 2017 that is has generalized. . “Can GPT be a brand even if it has a very descriptive origin?” Scher asks. It can, she says, pointing to IBM, short for International Business Machines, as just one instance of a brand that has a descriptive origin, even if the description is weak. That’s “no guarantee that (OpenAI) could end up owning (GPT),” Scher adds, but those precedents help.
Also helpful, Scher says, is the fact that OpenAI has been using “GPT” for years, having released its original Generative Pretrained Transformer model, or GPT-1, in October 2018.
Again, though, Scher noted that it’s a “fun situation” where “usually, when you’re based on usage, you’ve gradually built your brand in the marketplace,” while OpenAI was primarily known for AI researchers until last year. year, when he released an exciting deep learning model that generates digital images (DALL-E 2), followed by ChatGPT, he turned the company into something of an overnight sensation.
Even if a USPTO examiner has no problem with OpenAI’s application, it will later move to a so-called opposition period, where other market participants can argue why the agency should deny the “GPT” trademark.
Scher describes it this way: In the case of OpenAI, you would have to establish that “GPT” is proprietary and perceived as such by the public rather than perceiving the acronym to refer to generative AI more broadly.
How would the USPTO rule on public perception? “One scenario is you take a random sample of Americans and ask them to answer the question,” Scher says, but that’s a six-figure project that the government isn’t going to pay for, so any OpenAI challengers would have to side. foot. the bill for something like that.
Another means of establishing public perception links on how “GPT” has been used in public, from late-night talk shows to public deed. “If people don’t treat it like property, then a trademark judgment would decide whether or not it can be protected,” says Scher.
Unsurprisingly, that would involve a lengthy process, which is surely the last thing OpenAI wants.
It raises the question of why the company didn’t move to protect “GPT” sooner. Here, Scher speculates that the company was “probably surprised” by its own success. (In fact, it seems to be trying to get ahead of things in China, where it hasn’t launched ChatGPT yet and may not be allowed to, but allegedly tried to register a related trademark.)
Either way, Scher says, it’s his opinion that “we’ve crossed a line where GPT isn’t three random letters. If a (startup) asked me if it’s safe to adopt it, I’d say it’s not safe.”
OpenAI can further benefit from a facet of trademark law where a trademark’s fame is a dominant factor, Scher says. While you don’t have to be famous to get a trademark, once an outfit is famous, it receives protection, even outside of its purview. Rolex is too famous a trademark to be used on anything else, eg. If OpenAI can establish that “GPT” is a famous trademark, the company will also be able to prevent widespread use of the acronym (even if it would be expensive to prosecute infringers).
It could be the only advantage for the company in this lengthy process. The more time passes and the more users OpenAI accumulates and the more coverage the company receives, the more likely the latter scenario will be.
Is OpenAI known in the average home, by the average person? “Certainly,” Scher says, “they may be getting close to that.”
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