Can OpenAI Trademark GPT? (It’s Not That Simple!)

In the dynamic world of artificial intelligence, the question of intellectual property rights often leads to complex debates and legal battles.

A prime example is OpenAI's effort to trademark "GPT," an acronym for Generative Pre-trained Transformer, a foundational technology behind their popular AI models like ChatGPT.

This move by OpenAI highlights a critical issue: Can a term that fundamentally describes a type of technology become exclusive to one entity through a trademark?

As OpenAI navigates the challenges of trademarking a term that is both descriptive and widely used in the industry, the broader implications for competition and innovation in AI are brought into sharp focus.

This article explores OpenAI's attempts to trademark "GPT," the legal hurdles they face, and the potential impacts on the AI landscape.

OpenAI tried to prevent others from using "GPT."

OpenAI, the developer behind one of the most successful large language models, ChatGPT, attempted to trademark the term "GPT" (Generative Pre-trained Transformer) due to its widespread use and the emergence of similar products using variations of the name, such as:

• ThreatGPT
• MedicalGPT
• DateGPT,
• And DirtyGPT.

OpenAI sought to protect its brand and prevent confusion and dilution caused by these other similarly named products.

However, their initial petition to speed up the process was dismissed due to a missed payment and lack of proper documentation, delaying any decision on the matter.

OpenAI argued against the refusal of its request.

OpenAI argued that "GPT" has acquired distinctiveness through its use and association with its products over the years, pointing to factors such as their:

• Marketing efforts,
• The sales volume,
• And extensive media coverage that links "GPT" directly to OpenAI.

This argument is based on the principle that a descriptive mark can become protectable if it has gained secondary meaning in the minds of the public.

This is where it's identified more with the provider than the general product category itself​.

Is GPT truly merely descriptive?

The U.S. Patent and Trademark Office (USPTO) denied OpenAI's trademark application for GPT, which stands for "generative pretrained transformer," on the grounds that it is merely descriptive of the goods and services OpenAI offers, such as AI models and software services.

These terms were deemed to directly describe the nature of the products — AI models that generate text and content conversationally.

The trademark office categorizes trademarks from most to least distinctive, ranging from:

1. Fanciful,
2. Arbitrary,
3. Suggestive,
4. To descriptive,
5. And then generic.

"GPT" was categorized as descriptive because it directly refers to the type of technology used (Generative Pre-trained Transformer), making it challenging to justify it as a unique brand identifier without demonstrating that it has acquired a distinctive secondary meaning specific to OpenAI​.

Can a descriptive term become distinctive with a secondary meaning?

The principle that a descriptive term can become distinctive if it acquires secondary meaning was central to the case of Two Pesos, Inc. v. Taco Cabana, Inc.

Here, the Supreme Court held that a restaurant chain's distinctive decoration could be trademarked under the Lanham Act, provided it had acquired secondary meaning among consumers.

This principle is crucial for OpenAI, which might argue that "GPT," despite its descriptive nature, has gained distinctive recognition in the context of AI technology, akin to the distinctive decoration in Two Pesos​.

Each case is considered on its merits.

Despite precedence, each case is considered on its unique merits.As it stands, OpenAI's trademark application remains unsuccessful. Will this change? Only time will tell.

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