Can Tech Start-Ups Use Gpt In Their Names?
In recent months, numerous startups have applied for trademarks with the United States Patent and Trademark Office (USPTO) using the term “GPT” in their names such as ThreatGPT, MedicalGPT, DateGPT, and DirtyGPT. Many more are considering incorporating “GPT” into their names to signify their utilization of AI-based language models. “GPT” stands for “Generative Pre-trained Transformer,” and its popularity has surged due to the success of OpenAI’s ChatGPT, a chatbot built on OpenAI’s deep learning model. OpenAI, the company behind ChatGPT, applied for a trademark for “GPT” in December but faced challenges in the process. This essay will explore the legality of Tech Startups using “GPT” in their names.
Can OpenAI Secure a Trademark for GPT?
OpenAI applied for a trademark in December 2022 and made a petition to expedite the trademark process for “GPT”. The expedition was dismissed due to a missed fee payment and lack of appropriate supporting evidence. The decision on OpenAI’s trademark application could take up to five months or longer.
OpenAI faces several challenges in obtaining the trademark. Firstly, the term “Generative Pre-trained Transformer” is descriptive. Particularly, the word “Transformer,” which was introduced by Google in 2017 as a neural network architecture. Descriptive marks directly describe a characteristic or quality of the underlying product. These marks are protected only if the consuming public primarily associates them with a specific producer, rather than the underlying product itself. Given its descriptive origin, the question arises whether “GPT” can be considered a trademark.
However, OpenAI has a case for securing the trademark. Precedents such as IBM, which stands for International Business Machines, demonstrate that marks with descriptive origins can be protected. Additionally, OpenAI has been using “GPT” for years, starting with the release of its original GPT-1 model in October 2018. OpenAI finds itself in a unique situation regarding brand recognition. Unlike typical cases where a brand gradually builds recognition in the marketplace, OpenAI’s overnight success with ChatGPT brought it into the public eye.
The opposition period following the USPTO examination is another hurdle for OpenAI. During this period, other market participants can argue against OpenAI’s claim that “GPT” is proprietary and assert that it pertains to generative AI more broadly. Establishing public perception becomes crucial in determining the protectability of the term considering its descriptiveness. OpenAI needs to persuade USPTO to rule that “GPT” has become a recognizable term associated with OpenAI rather than a generic tech term.
OpenAI’s growing prominence may influence the final decision, but the drawn-out process poses risks and uncertainties for both OpenAI and potential challengers.
What Are The Potential Consequences For Startups That Use “GPT” In Their Names Without Securing The Trademark?
Trademark rights can be acquired by being the first to use the mark in commerce or by registering the mark with the USPTO. If a party owns the rights to a particular trademark, they can sue subsequent parties for trademark infringement. Infringement occurs when the use of a trademark is likely to cause consumer confusion about the source, sponsorship, or approval of goods. Courts consider various factors when determining consumer confusion, including the strength of the mark, proximity of the goods, similarity of the marks, evidence of actual confusion, similarity of marketing channels used, the caution exercised by purchasers, and the defendant’s intent.
If the trademark owner proves infringement, the court may order the defendant to cease using the mark, destroy infringing articles, and pay damages and attorney fees to the plaintiff.
In conclusion, the use of “GPT” in tech startup names carries potential legal risks and uncertainties. OpenAI’s pursuit of a trademark for “GPT” is not without challenges. However, with precedents and their established brand recognition, OpenAI may secure the trademark. Once OpenAI trademarks GPT, its counsels may likely start sending cease and desist letters to prominent startups that has GPT in their brand names.
Author: Emir Bodakçı