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Comment by jasode | Hacker News Reader

The story about the ruling really doesn't explain why another company called OpenText that's been around since 1991 and has a valid trademark registration in EU but OpenAI would be invalid. OpenText also has its Europe headquarters in Germany: https://www.opentext.com/about/office-locations

Any legal guesses as to why those 2 companies are treated differently with regards to the very generic words : "open", "text", "AI" ?

EDIT add another example is Open Systems that has a office in Switzerland. https://www.open-systems.com/

The trademark registrations search results: https://www.tmdn.org/tmview/#/tmview/results?page=1&pageSize...

We can assume the OpenAI lawyers brought up these and other similar examples and the court rejected the past examples as a valid argument.

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First of all, can you explain what an "open text" is?

Second, as far as I can find through the French IP office (INPI), OpenText (single word) is trademarked as a figurative trademark (meaning they are basically protecting the image of the logo), not a verbal trademark.[0]

Which is what you typically do when you know that your trademark is too likely to be rejected (as being too descriptive), but you want to give it a semblance of protection.

So, no, I wouldn't assume they have been treated better.

[0] https://data.inpi.fr/search?advancedSearch=%257B%2522checkbo...

All OpenText EUIPO trademarks I can find are also figurative https://www.tmdn.org/tmview/#/tmview/results?page=1&pageSize...

Maybe I'm using that website wrong but I clicked on "Word" as a filter and got these that are not figurative :

https://www.tmdn.org/tmview/#/tmview/results?page=1&pageSize...

So, in your list of 3:

- one is "OpenText The Information Company" which seems perfectly fine. It's not descriptive of a category of "things"

- another is "OpenText Elite" : same comment

- and the last is the original "OpenText" French trademark from 1991, which expired 25 years ago.

It's entirely possible that it went through in '91 because, again, an "open text" isn't something that makes a lot of sense at the time of Minitel and typewriters, but could maybe be rejected today (which is why they now use a figurative trademark)

> Any legal guesses as to why those 2 companies are treated differently with regards to the very generic words : "open", "text", "AI" ?

The legal situation may have changed since 1991. For example: The ruling refers to "Regulation 2017/1001", which, as the name suggests, only came into force in 2017.

Open AI has an independent descriptive meaning as composite term. You would practically trademark a whole class of products, not only a brand name.

In contrast, open text is not descriptive in the sense of being a category of things. Therefore there is no risk that competitors would run into trademark issues by just describing their products.

Also, trademark decisions are always contextual to their time. Today’s meaning of ‘open’ in the context of software and data was not even coined in 1991, at that time people used ‘free software’ as term. Today I am not sure if ‘open text’ could still be trademarked.

>Open AI has an independent descriptive meaning as composite term.

See my edit. "Open Systems" also had an independent descriptive meaning. The phrase "open systems" was a very common generic phrase in 1990s when companies talking about POSIX compliance was a big deal. (E.g. Microsoft touted POSIX in Windows NT.)

Maybe it's because in 1991 the word open in software wasn't ringing any bells for your average joe.

Basically the laws have changed since then, and OpenText is grandfathered in.

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