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OpenAI wants to protect key trademarks of its brand – but is it too late

13 September 2023 | Knowledge, News, The Right Focus

On the surface, it would appear that the market success enjoyed by OpenAI OpCo, LLC, the makers of ChatGPT, depends at least partly on the rights to the crucial word marks ChatGPT and GPT-4. Nothing could be further from the truth. It turns out that the AI solutions giant has still not obtained protection for these trademarks in its home market.

Late registration of the ChatGPT trademark

Despite the fact that ChatGPT 4.0 has been a well-known AI tool for almost a year now, OpenAI OpCo, LLC still has no word mark protection in the US for its flagship product.

The first application for the ChatGPT trademark was filed with the US Patent and Trademark Office (USPTO) in December 2022. This is surprising as the first version of ChatGPT made available to users of GPT-3.5 was released several weeks earlier, in November 2022.

The next application was filed only a few days before the official release of GPT-4, a new version of ChatGPT (March 2023). However, this action was also long overdue, as the name and functionality of the new product had been widely known for several months.

ChatGPT – why applications are so important

Trademark protection is obtained upon registration and is effective from the date the application is filed. Thus, if a trademark owner who uses a mark to designate goods and/or services unnecessarily delays filing an application, or does so after the product has been launched, they may be acting to their own detriment.

Indeed, it is not difficult to imagine that their competitors will be the ones to file product marks based on or referring to the names used by the owner.

This seems to be happening in the AI industry. Recently, Elon Musk announced that he is working on an alternative to ChatGPT called TruthGPT. There are also solutions on the market such as MedicalGPT and DirtyGPT.

OpenAI’s situation is complicated by the fact that others may hypothetically block registrations containing the word element ‘GPT’ by claiming that it is commonly used to mark artificial intelligence goods and services.

OpenAI has not obtained protection at the USPTO for the ChatGPT, GPT or GPT-4 marks, and all applications are pending at the Office. A prolonged period of non-protection for word marks may therefore have further negative consequences. Both in the short and long term.

Has OpenAI learned its lesson

When analysing the OpenAI case and looking for the causes of errors in building and managing the trademark portfolio, it can be concluded that the developers of the application may simply have been surprised by the scale of their success.

However, it appears that lessons have been learned in this area. At the end of July, with the announcement of the release of the latest version of ChatGPT, i.e. GPT-5, in the autumn of 2023, an application was filed to obtain protection rights for such a word mark.

Best to learn from others’ mistakes

Can companies with much smaller operations learn from OpenAI’s mistakes as they build their own brands? Of course they can!

They should remember to apply as early as possible for trademark protection for the marks they intend to use to identify their goods or services.

It is also important to check whether a mark can indeed be protected or whether it infringes the rights of others before registering it.

This last point is particularly important, as authorities analyse whether the mark applied for infringes the rights of those previously registered.

Do you want to know how to effectively protect your brand before it enters the market? Feel free to contact us.

Tomasz Szambelan

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Contact us:

Tomasz Szambelan

Tomasz Szambelan

Advocate / Counsel / Intellectual and Industrial Property Law

+48 608 593 042

t.szambelan@kochanski.pl