Comment by Uehreka | Hacker News Reader

Comment by Uehreka | Hacker News Reader

I’m seeing a lot of misunderstandings about how trademark works, so just to set the record straight:

(As usual, IANAL, and I only know about US trademark law, but many countries have signed IP treaties with the US, so it’s probably at least similar in most places)

- Trademark is very different from copyright. Copyright stops you from copying something, trademark only stops you from pretending to be (or be associated with) the person/company the mark represents.

- That’s the purpose in the end: Trademark protects consumers from being scammed by imposters. And it’s pretty well-scoped in terms of not doing anything else.

- Trademark is much harder for companies to get than copyright, and much easier for them to lose. A company must demonstrate that the average consumer is likely to associate the mark with them and them alone. They must sue anyone who infringes on the mark to demonstrate that they are still protecting it. They can lose protection at any time if the public largely stops associating them with the mark.

- Trademarks often apply very narrowly, which is why products in other markets can still be called “GPT” if a consumer wouldn’t likely confuse the two. OpenAI wouldn’t get to “own those three letters”, but they would be the only people allowed to use those three letters in the brand name of an AI model (or however the PTO decides to scope it).

- Trademarks by definition MUST be non-functional. A car company can’t trademark the arrangement of gears in their engine, but they CAN trademark the paint color if no one else is using that particular color and consumers associate it with their brand.

- A company doesn’t need to “invent” the thing they are named after. Apple didn’t invent apples, Amazon didn’t invent the Amazon. It’s certainly not a great idea to try and get a trademark on a name that was previously used for something else, but if you can demonstrate that consumers now associate the name with your product you may be able to get protection.

- And if you can’t demonstrate that consumers generally (it doesn’t have to be all consumers, but it needs to be a lot) associate the name or mark with your product, then you don’t get protection.

> It’s certainly not a great idea to try and get a trademark on a name that was previously used for something else, but if you can demonstrate that consumers now associate the name with your product you may be able to get protection.

See: https://www.cultofmac.com/454244/steve-jobs-naming-macintosh...

> McIntosh eventually granted Apple the rights to use the name “Macintosh” after a cash settlement. The price reportedly fell between $100,000 and “significantly higher.”

Also including https://en.wikipedia.org/wiki/Apple_Corps_v_Apple_Computer

> although newspaper accounts at the time stated that Apple Computer was buying out Apple Corps' trademark rights for a total of $500 million.[12]

On one hand half a billion dollars is an insane amount of money but on the other it doesn't sound enough for what was purchased.

This is really great context - thank you for posting, because it's incredibly informative.

I should also say that I use Open AI products and am overall an advocate of them. However, with that being said:

- I regard it as 100% disingenuous for them to call themselves Open AI, in the same way I regard it as 100% disingenuous for EE (Everything Everywhere) to call themselves EE in the UK when their network coverage is demonstrably patchy, and to the point of being woeful in many rural locales,

- The reason people are objecting here is that GPT is an acronym of Generative Pretrained Transformer which, unless I've entirely misunderstood the last decade or so of AI, is a standard term in the AI field that describes a type of model. People don't think, and I don't think, a single company should be able to trademark a standard piece of terminology within a field.

Beyond this, they're throwing shade at Open AI for trying to trademark GPT because this 100% conforms to the pattern of a company that started out with, what we all thought, was a remit of openness, still having the front to call themselves "Open AI" whilst locking any information of substance down for internal and Microsoft use.

And I still think what you said is incredibly useful, so I'm absolutely not trying to start a fight.

(And I don't hate Microsoft either: they do some good stuff [Azure, SQL Server, Xbox, Office, Teams {I know, that one's controversial, but I don't want to go down the rabbithole}], but the amount of BS involved in using Windows in a corporate environment does infuriate me on a daily basis - I point blank refuse to have it at home for anything other than emulation and retrogaming, which can, praise be to the Lord, substantially be satisfied with Linux nowadays.)

I think the current case is interesting, because "GPT" is both a technical term as well as a term widely known in the general public by now.

To illustrate with a fictionalised version:

Suppose a few years from now, OpenFlyingCar Inc. becomes the first successful commercial vendor of flying cars. They archieved this using a revolutionary new design centered around a device they call "Gravity Inverter" or GI. (They'd probably also rush to patent this device, but let's assume it's still early days in the tech, so there are still a lot of easy, substantial improvements possible that a patent wouldn't cover)

Competition is alarmed and soon there are several competing models on the market, from other automakers, each a variation of OpenFlyingCar's original design, each with its own improved reimplantation of a gravity inverter.

OpenFlyingCar, having been the first however, their car is quickly established in the industry as the "reference design". Inside the industry, cars that copy the design are generally called "GI-based car" and "gravity inverter" becomes a term of art for any implementation of such a device, regardless of who made it.

At the same time, OFC is still riding the initial wave of publicity and are heavily marketing their own car. Inside their marketing materials, the Gravity Inverter plays a prominent role - and of course they mean their own, original implementation by the term.

So now suddenly, the term has two different meanings: Inside the industry, a "gravity inverter" is a term of art that refers to any device which supplies that specific functionality - whereas, the general public only knows about the "Gravity Inverter", which is a thing that OpenFlyingCar made and that is used in their cars to make them fly.

So I wonder, would OpenFlyingCar under those circumstances be allowed to register "Gravity Inverter" as a trademark?

Tell that the Sky (company). They go after everything that has Sky in their name (including Microsoft's SkyDrive, now known as OneDrive)

Box.com didn't go after DropBox and look what happened to them.

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