Open AI may have had the most successful product launch of all time, but it has a few major problems when it comes to its trade mark strategy.
Here’s a prediction - the days of ChatGPT (the brand - not the product) are likely numbered.
The company’s three primary trade marks, “OpenAI”, “GPT” and “ChatGPT” are facing significant difficulties getting registered in Australia, the US and likely in many other countries around the world. At this stage, it seems unlikely that the company will be successful in registering its core brands any time soon.
Why? Its likely because each of the trade marks are descriptive, and they don’t sufficiently distinguish OpenAI's services. There could be other issues too, like similar prior marks - but the main issue is likely to be the lack of distinctiveness.
If a trade mark “does what it says on the tin”, it will face problems being registered. This can be costly, and it can cause a company significant problems retaining control over the brand.
OpenAI has learned from their previous branding missteps. Their latest publicly announced model, SORA, isn’t likely to face the same problems. But the pain of its suboptimal early branding decisions will live on for some time yet.
Note: The status of the trademarks referenced are current as at the date of publication, but they are subject to change.
Likely issues with the GPT trade mark
“GPT” is an acronym for generative pre-trained transformer, the technology which is currently powering large language models (LLMs) and is the underlying technology of the chat-based artificial intelligence which has taken the world by storm.
Although OpenAI introduced the first GPT to the world - it hasn’t been able to protect the term GPT as a trademark in Australia, the US, and likely in many other countries around the world.
That’s because the phrase “generative pre-trained transformer” is descriptive of the technology that it represents.
It’s like how CD is an acronym for “compact disk”, which describes the physical end product. In the case of the GPT, the end product is a generative (it generates responses) large language model which is pre-trained and based on the "transformer" deep-learning architecture.
Compare OpenAI’s model naming schema (GPT-3.5, GPT-4 etc) with its closest competitor - Anthropic’s recently released “Claude 3” models - Opus, Sonnet and Haiku.
Another potential issue is that a simple three letter acronym is generally going to be a competitive trade mark - there are many other companies who provide a variety of goods and services that have used GPT long before the inception of OpenAI.
"ChatGPT" trade mark issues
The ChatGPT trade mark is also facing difficulties being registered - likely due to the mark’s overall descriptiveness. “Chat” is another descriptive term when used in the context of a chatbot. You’re chatting with a GPT - it’s another trade mark that does what it says on the tin.
Beyond the problem getting the trade mark registered, the structure of the “ChatGPT” trade mark has caused additional issues for OpenAI.
As a consequence of ChatGPT’s unprecedented popularity, many business have taken some direct influence from ChatGPT with their latest products and services by using GPT as a suffix.
There are already 38 pending trade marks containing “GPT” as a suffix on the Australian register.
For those that have managed to get through the examination phase (and most haven’t), OpenAI is filing oppositions - including against “IMMIGPT”, which was filed in respect of immigration services. It’s not clear whether OpenAI will be successful in its crusade to stop the GPT clones, but time will tell.
Many of these GPT trade marks will face the same issue as ChatGPT - they’re a descriptive term with a GPT suffix. Examples include lawgpt, EduGPT, PropGPT and calcGPT. It’s likely that the same descriptiveness objection will be raised with those trade mark applications.
However, it is possible that a distinctive term used with a GPT suffix could push past registration. Assuming OpenAI is unsuccessful in registering their GPT applications, and the owner successfully defends any oppositions, they could ultimately obtain registration.
"OpenAI" trade mark issues
If you’ve read this far, you probably can guess what the issue is likely to be with the house brand, OpenAI.
Although the company has faced criticism about not living up to it’s “open” name - the business’ conduct isn’t relevant to the assessment of the trade mark application. It’s still descriptive of a open (as in, open sourced) artificial intelligence product or service. It does what it says on the tin.
The key difference with “OpenAI” as a trade mark is that it hasn’t been widely adopted by the AI community. It's more common to use the term "open source" rather than "open" alone to reference the concept of open source software. Unlike the GPT trade marks, OpenAI is not a reference to the underlying technology that can be theoretically adopted by others. But it's easy to see why there is an issue with OpenAI as a trade mark.
Expect aggressive defence of the brand against anyone who tries to use a trade mark similar to OpenAI.
If you use a descriptive trade mark for long enough that consumers recognise it as your brand, and provide evidence of that use to the trade mark examiner, it's possible to overcome the objection.
Eventually, given the magnitude of OpenAI's use of the brand, it’s likely that the company will ultimately be able to register “OpenAI” in Australia.
What’s the impact of descriptiveness issues?
If OpenAI had chosen more distinctive trade marks at the outset, they would have a much easier time protecting the brands and stopping copycats.
OpenAI’s trade mark choices means that they have or might ultimately lose control of GPT as a brand. ChatGPT is likely going to need a rebrand.
The trade mark register in Australia is already a battleground of pending “x-GPT” applications - and OpenAI is trying to keep a lid on the competition through oppositions.
If OpenAI is ultimately unsuccessful in registering GPT, it will likely find it quite difficult to oppose all of the GPT applications.
It seems like there would be limited grounds for OpenAI to oppose a distinctive trade mark with a GPT suffix. For example, while you would not be able to register “Cloud” as a trade mark for cloud services, you could use it as a suffix to a distinctive trade mark.
The impact is unnecessary costs, and lost brand value.
Given the current AI landscape, where the big players are releasing new models up to several times each year, it seems very likely that OpenAI will move away from its GPT branding.
Overcoming descriptiveness issues
Evidence of use
While a descriptiveness objection is common, it’s also possible for people who have been using the trade mark for several years to overcome the issue. For this to happen, you have to have been using the trade mark consistently for several years.
The more descriptive/non-distinctive your trade mark, the better the evidence needs to be. If your trade mark is very descriptive, you'd need to be able to show a lot of use of the trade mark, significant marketing spend, and product/service sales figures to convince an examiner that your trade mark has "acquired distinctiveness" through use.
Adding a distinctive logo element
It might be possible to get some protection by adding a distinctive logo element, and filing an application for a logo trade mark.
This strategy isn't as good as having the word mark registered. Trade marks are considered as a whole. Generally, if someone isn't infringing the distinctive logo element of an otherwise non-distinctive trade mark, they're unlikely to be infringing the owner's rights. But it can provide some benefits and is generally better than no trade mark protection.
OpenAI has had some success with this strategy with their OpenAI logo - however they've run into issues with a logo application for ChatGPT which is likely due to the logo element (a black circle) not being sufficiently distinctive:
Trade mark | Status | Notes |
|---|---|---|
 | Registered | The knot logo here is quite distinctive. |
 | Under examination | The black circle is not particularly distinctive. The logo would be treated similarly to the "CHATGPT" word application. |
Need help with your trade mark?
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*Please note, the information in this article is general in nature and is not legal advice. You should seek independent legal advice tailored to you and your circumstances.