OPENAI THWARTED IN ITS EFFORT TO REGISTER GPT AS A TRADEMARK

The term “GPT” is ubiquitous as of late. However, the company OPENAI OPCO, LLC (“OpenAI”) has marked the term “GPT” as its own.  OpenAI, the company behind the service, CHATGPT, filed a trademark application for the term “GPT” in December 2022, claiming exclusive use of the term. However, the United States Patent and Trademark Office (“USPTO”) has issued a final refusal disagreeing with OpenAI’s position and finding the term “GPT” is likely generic as it relates to OpenAI's goods and services and therefore ineligible for exclusive use as it relates to those products.

OpenAI originally filed its application for GPT on December 27, 2022.  On May 25, 2023, the USPTO Examiner reviewing the mark issued an initial refusal, finding the mark to be descriptive and likely generic as it relates to OpenAI’s products.  OpenAI submitted a fairly formulaic response to the Examiner’s initial refusal.  Unsurprisingly, the Examiner was not persuaded.

On February 6, 2024, the Examiner issued a final refusal for the application. Restating the position that “GPT” is a widely used acronym for "generative pre-trained transformers," which are neural network models that "give applications the ability to create human-like text and content (images, music, and more), and answer questions in a conversational manner." OpenAI’s goods and services description show that the mark is being used in connection with software products using artificial intelligence, machine learning, and natural language processing and generation. Accordingly, consumers encountering the acronym "GPT" will immediately understand this to communicate a feature of OpenAI’s products.  While consumers may not know the underlying words of the acronym, it does not alter the fact that relevant purchasers are adapted to recognizing that the term "GPT" is commonly used to identify a particular type of software that features AI ask and answer technology. Thus, the term “GPT” merely describes a feature, function, or characteristic of OpenAI’s goods and services.

The Examiner again found the term “GPT” appears to be generic as used in association with OpenAI’s goods and services, and thus is not afforded any protection as a trademark when used in conjunction with OpenAI’s products.

Finally, the Examiner punctuated the refusal by explaining the two primary reasons for not protecting descriptive marks are (1) to prevent the owner of a descriptive mark from inhibiting competition in the marketplace and (2) to avoid the possibility of costly infringement suits brought by the trademark or service mark owner. Businesses and competitors should be free to use descriptive language when describing their own goods and/or services to the public in advertising and marketing materials.

While the USPTO appears firm in its stance on the term “GPT”, OpenAI may issue a response to the final refusal within six months of the date of the final refusal and/or appeal the decision to the Trademark Trial and Appeal Board.  Stay tuned.