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Comment by jameson | Hacker News Reader

> The EUIPO found that the word "open" would be understood by the relevant public as meaning freely accessible, while the combination with "AI" (artificial intelligence) would be interpreted as referring to products based on openly accessible artificial intelligence.

> for certain software and information technology goods and services, the term is purely descriptive and therefore lacks the distinctiveness required for trademark protection

edit: add the latter statement

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More pertinently "the term is purely descriptive and therefore lacks the distinctiveness required for trademark protection." I.e. the problem isn't that OpenAI's products don't match their description, but that trademarking it would unduly prevent others from describing their openly accessible artificial intelligence as "open AI."

I think there is most likely set of adjectives that would fall under same reasoning. GreenAI or FreeAI likely would be also be refused.

On other hand RedAI or BlueAI might very well pass. It is not entirely unreasonable decision if you consider if the terms would be used in regular conversations on AI.

> RedAI

I suppose that could be a generic term for any AI used as an mock adversarial or sparring-partner role, like how "red team" is today.

> BlueAI

Would refer to an LLM/agent rained to simulate clinical depression...

...at which point I would ask why we're creating things that will know only pain and suffering? Are we the baddies now?

BeAfraidUhhhhhAI

> RedAI

That's Qwen.

> BlueAI

“All the Troubles of the World” (Asimov, 1959)

UnicornAI. You’re welcome

Not sure that’s an adjective

If you use it like unicorn poop, then it is describing the kind of poop just like Open/Green/Free in previous examples would be describing AI

That doesn’t mean it’s an adjective though

https://en.wikipedia.org/wiki/Noun_adjunct

An excellent example of something that clearly wouldn't be distinctive since all AI related endeavors bill themselves as unicorns.

It doesn't actually mean anything though, so I think it would pass as a trademark. Apple Computer is allowed because Apple doesn't mean anything in relation to computers. You might have trouble with Mouse Computer unless you were the company that invented or popularized the mouse.

MMAcevedo does respond to red motivation, though poorly.

>More pertinently "the term is purely descriptive and therefore lacks the distinctiveness required for trademark protection."

As I wrote in my other comment, "open systems" also can be purely descriptive and yet Open Systems seems to be a valid trademark in Europe.

I'm not defending OpenAI. I'm just confused that the rules for allowing trademarks for ordinary words and phrases don't look consistent at the surface level.

From the background information provided in the court decision:

"as regards the earlier similar registrations relied on by the applicant, the Board of Appeal recalled that those registrations did not represent current practice and case-law and that the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation 2017/1001 and not on the basis of a previous administrative practice."

Courts exist, among other things, to specify the rules in ambiguous cases. Rules will be ambiguous always.

> I'm just confused that the rules for allowing trademarks for ordinary words and phrases don't look consistent at the surface level

Precedence in court decisions is weighted more in some places than others. US courts, from my pedestrian observation, are all into "well there is a precedent so we'll follow that". But other countries don't necessarily do that, their courts might be more eager to disregard it and do whatever they feel is appropriate in that situation. You can see it in how OpenAI reacted "The company also cited comparable trademark registrations previously granted by the EUIPO and registrations in more than 30 other countries, including the United Kingdom and Singapore" (well precedents say this and that...)

Even the US does change policies every once in a while. This is a case where Open Systems was last challenged under the old rule set when it was acceptably descriptive. Since that point standards have changed and, presumably, Open Systems might now be exposed to a similar mark challenge.

This sort of rejection is quite common. You can overcome the objection by submitting evidence that your mark has acquired distinctiveness through use. So there will be plenty of trademarks that seem generic/descriptive that have gone through that process.

edit: I originally thought that’s what was being rejected here. It’s not. The court only ruled that “OpenAI” is descriptive. Separately, OpenAI have also submitted evidence of acquired distinctiveness, which will be decided in due course by the trademark office.

> I originally thought that’s what was being rejected here. It’s not. The court only ruled that “OpenAI” is descriptive. Separately, OpenAI have also submitted evidence of acquired distinctiveness, which will be decided in due course by the trademark office.

My gut feeling is on them loosing that one.

Stop most people on the street and ask them about "OpenAI". I suspect your average Joe would say "Who ?".

Continue the discussion with "have you heard of ChatGPT" and I suspect the answer would mostly be "Yes, I have".

OpenAI are applying for "OpenAI" in this trademark application. The fact they have a widely known product called "ChatGPT" which they actively market under the name "ChatGPT" does not and should not come into the thought process of any appeals judge.

The fact that Open Systems hold a trademark on "Open Systems" is less a signal that OpenAI should be allowed to hold "Open AI", and more a sign that Open Systems should start considering changing their name because they'd lose their trademark if someone disputed it.

Does EU court follow stare decisis, given that most member states follow civil law?

> a sign that Open Systems should start considering changing their name because they'd lose their trademark if someone disputed it.

IANAL but it AFAIK it does not work like that....

Yes, IN THEORY a registered EU trade mark can be attacked at any time through an invalidity action based on absolute grounds (Article 59(1)(a) EUTMR). If the mark should never have been registered because it was descriptive under Article 7(1)(c) or devoid of distinctive character under Article 7(1)(b), any person can file to have it declared invalid.

But, and its a big BUT...

Even if a mark was registered in breach of Article 7(1)(b)–(d) — i.e., it was descriptive or non-distinctive at the time — it cannot be declared invalid if, through use after registration, it has acquired distinctive character. This is confirmed in the case law, e.g., Adapta Color v EUIPO (T-225/17, 2019), which explicitly references this provision

So "Open Systems" might have started life as a descriptive registration, but if the holder can show that, through years of market use, consumers now associate the term with them specifically (as a badge of commercial origin rather than a generic descriptor), the mark survives.

This is exactly the defense that OpenAI itself tried — and failed — to mount in its application, but the evidentiary burden in an invalidity action against an established mark with years of use evidence can be quite different from a fresh application.

I suspect OpenAI's lawyers told them this but they were instructed to proceed anyway towards the inevitable loss ....

P.S. Is "Open Systems" even registered in the EU as a trademark ? I did a very quick search on EUIPO and could not find it ?

While the industry is currently using "open weights" or "open models", the use of open AI could equally be used now.

And to think that this could have all been avoided if they'd just renamed themselves something more appropriate after they decided to focus fully on developing closed models for profit.

ShowMeTheMonAI ?

This seems pretty silly.

Extremely silly.

Take, for example, OpenText. [1]

Nothing about it is free, or open source code, or in any other sense publicly accessible. [2]

I don't know if they operate in the EU, but I presume any application for a trademark would be rejected.

[1] https://en.wikipedia.org/wiki/OpenText

[2] It's "Open" as it turns paper documents into more easily accessible digital formats. But not public in any way.

The purpose of the company is also rarely defined by it's name. Brands aren't inherently descriptive and it's normal for companies to evolve over time.

You mean Shell doesn't sell sea shells? [1]

[1] Actually it originally did in 1833. It doesn't today. But that’s still the name.

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