ChatGPT has been making waves globally in recent days and weeks. Microsoft has already invested 1 billion USD in OpenAI (developer or ChatGPT) and is planning to invest 10 billion more. ChatGPT has left many wondering what the role of professionals will be in the future and whether ChatGPT (or a similar AI product) will replace them altogether.
What is ChatGPT?
Below is the answer we got when we posed the question to ChatGPT directly.
“ChatGPT is a computer program that uses advanced artificial intelligence (AI) to generate human-like text. It is trained on a massive amount of text data and can understand and respond to a wide range of questions and prompts. It is used to automate tasks such as writing and conversation.“
ChatGPT can answer very complex questions, write blog posts on given topics, explain concepts, make recommendations, etc. It’s extremely impressive.
We tested it by asking it to explain various trademark concepts such as “exhaustion” and “likelihood of confusion”. While not always completely accurate, it did a very good job in explaining these concepts in general terms. We also asked it to list the most important trademark cases from the EU court from the last 30 years. It did a great job, listing classics such as Davidoff, IP Translator, and Google France v. Louis Vuitton. It also gave a quick overview of each case.
How did ChatGPT perform with trademark questions?
When asked whether trademark “RAPID” would be a distinctive mark for shoes, ChatGPT gave factors that are relevant in this assessment, and when requested to give a more definite answer (to lean either to yes or no), it said the following:
“As a language model, I don’t have the capability to conduct a full examination of a trademark application, thus I cannot give a definitive conclusion on whether “Rapid” would be considered distinctive for shoes under EU trademark law without all the necessary information and examination. The distinctiveness of a trademark is evaluated on a case-by-case basis and the EU Intellectual Property Office (EUIPO) will take into account a variety of factors… it’s always best to consult with a trademark attorney or a legal professional for more accurate and up to date information and advice.”
I also asked ChatGPT to write arguments as to why the slogan [omitted] should be considered distinctive. This was a real case where EUIPO had already considered that the mark was not distinctive. ChatGPT gave very concinving and even original arguments in support of that position. On the other hand, some of the arguments we such that they could be considered against distinctiveness by EUIPO. For example, ChatGPT wrote that
“The phrase [omitted] creates a sense of aspiration and ambition, rather than a simple statement of fact“.
According to EUIPO’s practice, aspirational and motivational slogans are generally not distinctive. To the merit of ChatGPT, it also gave reasons as to why aspirational expressions should be considered distinctive. These reasons were pretty convincing, and if rephrased a bit, could certainly be used. Overall, the response was well thought out and surprisingly original and convincing. However, any trademark attorney could notice that some of the arguments generated by ChatGPT were counter-productive and if submitted as such to EUIPO, would merely support EUIPO’s position of non-distinctiveness.
Another question where ChatGPT performed poorly was: “what are the most important countries that are not part of the Madrid System?”. Madrid System is the international registration system administered by World Intellectual Property Organization. ChatGPT gave first a good explanation of the Madrid System and then listed important countries that are not part of it: the US, Canada, Russia, China, India and Brazil. In fact, all of these countries are part of the Madrid System. When I pointed this out to ChatGPT, it gave the following apologetic response:
“I apologize for the confusion caused by my previous answer. You are correct that the United States, Canada, China, Brazil, India, and Russia are all member countries of the Madrid System. They are all part of the Madrid Protocol, which allows trademark owners to file a single application in their home country, and then extend the protection of their trademark to other member countries of the Protocol.
The Madrid System is constantly evolving and growing, and new countries are joining the system every year. The list of member countries of the Madrid system can be found on the WIPO website (www.wipo.int/madrid/en/)”
When I asked ChatGPT to compare two specific trademarks and assess their similarity, it rightly concluded that that the marks in question were similar. The example I gave was not particularly difficult.
Relying on ChatGPT on legal matters runs an obvious risk of getting bad advice or information. It also seems that if you challenge ChatGPT’s assessment, unlike many human colleagues, it is willing to review its answer and correct it if necessary.
Are there any good uses for ChatGPT in trademark matters?
Yes. As said, it is good at explaining concepts on a general level. It is also good for very basic research.
Another good use case, which ChatGPT itself also acknowledged, is to let it invent brand names. Here’s an example of brand names I got for my instructions to come up with ten names for a new women’s shoe collection:
After giving these proposals, it added the following statement: “Please note that these names are generated based on my training data and they may be already taken or registered by other companies, it’s always recommended to conduct a trademark search before using a brand name.”
The good thing is that if you don’t like any of these, you can ask it to generate more. You can even direct it to come up with certain types of names. If you want the names to give a luxurious impression, just tell that ChatGPT and it’s up to the task. The above-listed names are somewhat descriptive, but you can always prompt it to tweak the proposals. You can ask for names that rhyme or names that are funny. The sky’s the limit.
It seems that ChatGPT is a great helper and assistant, but you need to be very knowledgeable in trademark matters to know when it gets things wrong. It cannot be trusted blindly.
In fact, I put the question directly to it: Can ChatGPT replace your trademark attorney? Here’s its answer:
“No, ChatGPT cannot replace a trademark attorney. While I can provide general information about trademarks and assist with research, I am not a licensed legal professional and my information may not be accurate or up-to-date. A trademark attorney has the necessary knowledge and experience to provide legal advice and representation in trademark-related matters. They are familiar with the laws and regulations, and can provide guidance and help you navigate the legal system. It is always best to consult with a qualified attorney for any legal advice.”
P.s. ChatGPT’s sister project DALL·E 2 created the photo with the prompt: “an impressionist oil painting of artificial intelligence”