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by onion2k 13 days ago
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.
2 comments
gruez 13 days ago
Does EU court follow stare decisis, given that most member states follow civil law?
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traceroute66 12 days ago
> 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 ?

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