OpenAI, Inc. v. Open Artificial Intelligence, Inc., et al. (Steckel)

Analysis Group was retained on behalf of OpenAI, the plaintiff in trademark litigation against Open Artificial Intelligence. OpenAI – an AI software company that creates AI models and applications, including the ChatGPT chatbot – alleged that the defendants’ use of the name “Open AI” and the domain “www.open.ai” was likely to cause confusion in the marketplace, such that relevant consumers would mistakenly infer a connection or affiliation between the two companies. In response, the defendants alleged trademark rights in the Open AI mark and offered two expert reports to support their argument that the plaintiff’s OpenAI name was not a valid trademark. Specifically, the defendants’ experts opined that OpenAI had not acquired secondary meaning (that is, it did not function to identify a single source of goods or services) and that it was confusingly misdescriptive of the goods and services offered by the plaintiff.

An Analysis Group team led by Principal Robert Vigil and Vice President Kate Schofield supported academic affiliate Joel Steckel, who submitted a rebuttal expert report in which he identified several flaws in the defendants’ experts’ analyses – including that both experts improperly defined the relevant universe and that OpenAI’s unsolicited media coverage was not considered – and concluded that the experts’ analyses did not support their conclusions regarding secondary meaning and descriptiveness. He also conducted his own analysis of unsolicited news coverage of OpenAI during the relevant time period and opined that OpenAI’s consistent level of organic publicity suggested “growing recognition” among consumers.  

A judge in the US District Court in the Northern District of California granted the plaintiff’s motion for summary judgment, finding that the OpenAI name had acquired secondary meaning before the defendants’ use of their mark in commerce and enjoining the defendants from further use of the Open AI mark.