(By You Yunting) After U.S. OpenAI company a year ago launched a large language model ChatGPT3.5 version, a number of domestic companies have filed the trademark application of “ChatGPT”, many of which have been registered or gone through the Trademark Office’s preliminary examination and entered into the announcement process. I have found after my reflection that it is not easy for the company to successfully protect its rights because ChatGPT is not available to Chinese users, and its own trademark application is also at risk. Today I will talk about this matter with you.

The following chart shows the current registration and announcement of “CHATGPT” that I have initially inquired about:

Registered CHATGPT Trademarks
Serial number	Name	Form	Date of application	Applicants
69584828	CHATGPT	Class 05 – Medicine	2023-02-15	Linzhen Geng
69513760	CHATGPT	Class 10 – Medical Equipment	2023-02-11	Shaanxi Yi Xi Trading Co.
69513764	CHATGPT	Class 12 – Means of transportation	2023-02-11	Shaanxi YiXi Trading Co.
69519739	CHATGPT	Class 39 – Transportation and storage	2023-02-11	Shaanxi YiXi Trading Co.

 

CHATGPT trademarks that have entered the announcement period (as of 2023-12-11)
Serial number	Name	Form	Date of application	Applicants
69563769		Class 07 – Machinery and equipment	2023-2-14	Wang Di
695583214		Class 08 – Handicrafts	2023-02-14	Wang Di
69564145		Class 10 – Medical Equipment	2023-02-14	Wang Di
69559124		Class 11 – Lighting and air conditioning	2023-02-14	Wang Di
69556036		Class 11 – Lighting and air conditioning	2023-02-14	Wang Di
69669227	CHATGPT	Class 13 – Arms and fireworks	2023-02-20	SpiroSheep (Shanghai) Technology Co.
69559401		Class 15 – Musical Instruments	2023-02-14	Wang Di
69678444	CHATGPT	Class 18 – Leather and Leather Goods	2023-02-20	SpiroSheep (Shanghai) Technology Co.
69563992	CHATGPT	Class 32 – Beer Drinks	2023-02-14	Daxinganling Starlight Avenue Food Co.

 

If OpenAI intends these registered ChatGPT trademarks to be nullified or deter those that have passed the preliminary examination of the Trademark Office and entered into the announcement period from being registered, they will face complex legal issues as follows due to its own reasons or the classes to which the trademarks belong.

 

Ⅰ. OpenAI has not used ChatGPT as a trademark in China.

OpenAI has not provided the ChatGPT function for Chinese users, and all users with IP addresses in China cannot access its website. If your IP address is changed by some software, you still need to register an account, requiring verification by foreign phone numbers, so a domestic user need to use a foreign phone number or a foreign SMS receiving platform for registration. ChatGPT 3.5 is free, but if you want to use the paid version of ChatGPT 4.0, which is more powerful, you need to register with an overseas credit card and a more stringent IP address verification process.

ChatGPT is not available to Chinese users, which means that OpenAI does not have legal trademark use for the ChatGPT trademark in China. Therefore, the most conventional means to fight against trademark squatting by applying the second half of Article 32 of China’s Trademark Law, which states that “one shall not, by improper means, register a trademark that has already been used by another party and has a certain degree of influence,” cannot be used, as the use under this provision refers to the use in China.

Ⅱ. None of the trademarks that have been registered or passed the preliminary examination are in AI-related categories

OpenAI applied for the trademark registration of “ChatGPT” in March 2023 in China in Class 9 Computer Hardware and Software and Class 42 Artificial Intelligence Research, Technical Consultation and so on. However, as mentioned above, the categories of trademarks that have already been registered or preliminarily reviewed are: Class 05 – Medicine, Class 07 – Machinery and Equipment, Class 08 – Handicrafts, Class 10 – Medical Equipment, Class 11 – Lighting and Air Conditioning, Class 12 – Means of transportation, Class 13 – Arms and fireworks, Class 15 – Musical Instruments, Class 18 – Leather and Leather Goods, Class 32 – Beer Drinks, and Class 39 – Transportation and Storage. All of these categories are different from the categories in which OpenAI uses ChatGPT. Therefore, if OpenAI wants to claim cross-class protection for its trademarks, it will face the dilemma of not being supported by the legal provisions on well-known trademarks. There are two standards for the protection of well-known trademarks as stipulated in Article 13 of China’s Trademark Law:

1. If well-known trademarksthat havealready been registered in China are copied, imitated, or translated by others, misleading the public and causing potential harm to the interests of the registered trademark owner, cross-class protection can be provided.
2. Well-known trademarks that have not been registered in China shall be protected only in respect of the same or similar goods if they have been copied, imitated or translated by others in such a way as to cause confusion.

OpenAI’s “ChatGPT” has not been registered in China, so it cannot be protected across classes. Meanwhile, the determination of a well-known trademark in China, whether by the State Intellectual Property Office or by the people’s court, requires evidence of the degree of knowledge of the trademark by the relevant public, the duration of the use of the trademark, the duration, extent and geographical scope of any publicity efforts for the trademark, the record of protection of the trademark as a well-known trademark, and other factors of the trademark’s well-knownness, showing its influence within China.

So there are two problems here. One is that OpenAI’s ChatGPT brand was originally only well known in the IT industry, and it became popular outside the industry at the end of last year due to the launch of ChatGPT3.5, so its popularity was built up in a relatively short period of time. At the same time, its blocking of Chinese users has led to its lack of popularity in China. According to the domestic regulations, if the prior trademark only has a high reputation in other countries or regions, but based on the actual use of the trademark before the filing date, it cannot be known to the relevant public in China nor be recognized as a well-known trademark. Therefore, it is extremely difficult for OpenAI to utilize the well-known trademark protection rules to fight against the “ChatGPT” trademarks that have already been registered or passed the preliminary examination.

Ⅲ. Some Trademarks Passing Preliminary Examination Infringe OpenAI LOGO‘s Copyright

 is the logo of OpenAI company, which is a work of art and protected by the Copyright Law if it is manually designed and not generated by artificial intelligence. I have noticed that some of the ChatGPT trademarks that have passed the preliminary examination have used the logo as the graphic representation of the trademark. According to Article 32(1) of China’s Trademark Law, the application for trademark registration shall not jeopardize the existing prior rights of others. Copyright is also a type of prior right, so OpenAI can claim that these trademarks infringe on their copyrights and file a trademark opposition against them. Below is the design idea of the logo provided by ChatGPT.

 

ChatGPT

As of my last update in January 2022, the OpenAl logo is stylized with a triple helix motif, which is made up of three intertwined spirals or three human legs. The triple spiral is a symbol used in different cultures and contexts throughout history, and its exact meaning may vary.

OpenAl’s reasons for choosing the triple helix as its symbol are not clearly documented in the information I understand. However, the triple helix is a symbol associated with movement, progress, and dynamic change. These themes may reflect OpenAl’s commitment to advancing artificial intelligence and technology.

It is worth noting that the interpretation of symbols can be subjective, and the reasons for choosing a particular logo may involve a combination of aesthetic preferences, cultural references, and a desire to convey specific values or ideas. For up-to-date and accurate information about the OpenAl logo design, it is recommended to consult the official statement or newsletter of OpenAl.

 

You

Who designed the OpenAI logo?

 

ChatGPT

As of my last update in January 2022, OpenAl’s logo designer was not publicly disclosed. Typically, some companies may choose to disclose the logo designer, while others may choose to keep a relatively low profile and focus on the company’s mission, vision, and products.

For the most up-to-date information about OpenAl logo designers, we recommend checking OpenAl’s official website, social media channels, or relevant press releases. There may be public notes or statements about the logo design that explain the idea and inspiration behind the design.

 

Some people may ask, “As OpenAI is a foreign company, does our country also protect its copyright?” The answer is yes. Both China and the United States are parties to the Berne Convention for the Protection of Literary and Artistic Works, and therefore protect the copyrights of each other’s nationals. According to the Supreme Court’s Judicial Interpretation on Trademark Rights, if OpenAI contends that its logo is a work of art within the meaning of the Copyright Law, it should provide prima facie evidence of copyright ownership, such as the design drafts and originals of the trademarked logo, the contract of acquiring the rights, and the certificate of registration of the copyright prior to the date of filing of the trademark application, etc., as proof.

Ⅳ. Alleged trademark hoarding by some applicants

I have noted that many companies in China have filed a large number of trademark applications of “ChatGPT” as a popular term, and some of them have also filed trademark applications for other names in bulk in multiple categories. If these applications are not made for the purpose of use, OpenAI can request the State Intellectual Property Office to reject or invalidate these trademarks on the grounds that they are suspected of hoarding trademarks, violating the principle of good faith, disrupting the normal order of the administration of trademark registration, lacking the legitimacy that a registered trademark should have and jeopardizing the market order of fair competition. The legal basis is Article 4(1)(b) of the Trademark Law, which states that applications for registration of trademarks made in bad faith and not for the purpose of use shall be rejected.

Ⅴ. OpenAI’s ChatGPT trademark application is a long shot

As mentioned above, OpenAI has applied for registration of the trademark “ChatGPT” in China in Class 9 and Class 42. The term “ChatGPT” itself has a natural meaning and is less distinctive when used in the context of AI-related services, which may cause significant problems for OpenAI’s application in China.

ChatGPT stands for Chat Generative Pre-trained Transformer, and Transformer is one of the three commonly used feature extraction network structures in deep learning, the other two being CNN, RNN. That is to say, the term “ChatGPT” is an acronym for an AI service pattern description.

Therefore, even if OpenAI’s trademark application for “ChatGPT” is registered after examination in Classes 9 and 42, anyone can apply for nullification against OpenAI on the grounds that the name is not distinctive. According to Article 11 of the Trademark Law, a mark that only directly indicates the quality, main raw material, function, use, weight, quantity or other characteristics of the goods shall not be registered as a trademark. If it can be proved that the name is not distinctive, it is possible for the State Intellectual Property Office to nullify it.

Ironically, however, the term “ChatGPT” is distinctive when applied to other categories mentioned in this article before, such as medicines and machinery, so that when OpenAI’s own “ChatGPT” trademark is nullified, “ChatGPT” trademarks applied for registration by others in other categories may continue to be registered.

The reason is still a matter of evidence of use. If OpenAI does the filing of artificial intelligence algorithms for ChatGPT according to the compliance process in China and uses them in China, it will gain a high reputation with its excellent technical ability, so that it may be registered as a trademark under the provisions of Article 11(2) of the Trademark Law, which provides that when a mark that only directly indicates the quality, main raw materials, function, use, weight, quantity and other characteristics of the goods has acquired distinctive features through use and is easy to be recognized, it can be registered as a trademark.

In summary, although OpenAI, as the inventor of ChatGPT, has some legitimacy to fight against others’ trademark squatting, it is difficult to protect its trademark because it has not used ChatGPT in China. As a user of ChatGPT, I still hope that ChatGPT will enter into China as soon as possible, so that domestic users can experience the world’s leading AI service through normal access.

 

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You Yunting

86-21-52134918  

youyunting@debund.com

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