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The explosive growth of generative artificial intelligence has brought with it an equally unprecedented boom in brand names. Walk through any tech hub, scroll through LinkedIn, or browse a software directory, and you will find an endless sea of “GPT” suffixes and prefixes. Thanks to the massive cultural and commercial footprint of OpenAI’s ChatGPT, those three letters carry immense market value. They signal immediate capability, sophisticated reasoning, and cutting-edge tech.

However, this widespread adoption has created an intense legal bottleneck. As tech giants, nimble startups, and open-source developers all rush to integrate these three letters into their corporate identities, a high-stakes legal tension has emerged: increasing market-wide adoption is clashing directly with attempts to claim exclusivity.

This friction has already triggered a global legal battleground. In the United States, the USPTO issued a final refusal against OpenAI’s bid to own the standalone “GPT” mark, ruling it merely descriptive. Meanwhile, in Europe, the EUIPO delivered a staggering blow by completely invalidating OpenAI’s registered trademarks for GPT, GPT-3, GPT-4, and GPT-5.

As “GPT” becomes shorthand for an entire class of AI technologies across the globe, an important legal question emerges: Can any one entity claim exclusive rights over it, and where does Malaysia stand in this geopolitical IP war?

LEGAL FRAMEWORK : DISTINCTIVENESS IN TRADEMARK LAW

To understand the battle over “GPT” within the local context, one must look at the foundational bedrock of Malaysian trademark law: distinctiveness. Under Section 3(1) of the Trademarks Act 2019 (TMA 2019), a registrable trademark must be a sign capable of being represented graphically and, crucially, capable of distinguishing the goods or services of one undertaking from those of others.

When the Intellectual Property Corporation of Malaysia (MyIPO) or the Malaysian courts evaluate an application, they measure the mark against a spectrum of distinctiveness, balancing it against the Absolute Grounds for Refusal stipulated under Section 23 of the Act:

  • Fanciful / Arbitrary Marks (Highest Inherent Distinctiveness): Coined words with no inherent meaning (like Kodak) or common words applied to completely unrelated products (like Apple for computers). These enjoy immediate prima facie eligibility for registration because they are naturally capable of distinguishing a brand.
  • Suggestive Marks: Words that hint at the nature, quality, or characteristics of the product but require an element of imagination or perception (like Netflix for streaming services). These are generally acceptable to MyIPO without requiring proof of market use.
  • Descriptive Marks (Section 23(1)(c) Barrier): Under the TMA 2019, MyIPO will refuse signs that consist exclusively of indications designating the kind, quality, quantity, intended purpose, or value of the goods or services. A descriptive mark cannot be registered unless it satisfies Section 23(2), proving that it has in fact acquired a distinctive character (secondary meaning) in the Malaysian market through intensive, widespread, and continuous use before the filing date.
  • Generic or Customary Marks (Section 23(1)(d) Barrier): Signs that consist exclusively of indications that have become customary or colloquialised in the current language of the territory or in the established practices of the trade (like Smartphone or Escalator). These are entirely devoid of distinctive character and face an absolute bar to registration as a matter of public policy.

IS ‘GPT’ BECOMING GENERIC OR DESCRIPTIVE

Determining whether a term has crossed the line into the legal graveyard of genericism requires looking at real-world usage. Trademark examiners weigh several key indicators:

  • Dictionary and Technical Definitions: Lexicons and academic papers widely define “GPT” or “transformer” as a type of machine learning model architecture, not a proprietary product.
  • Widespread Third-Party Use: The sheer volume of software tools independently using the acronym.
  • Media and Consumer Shorthand: How the public talks about technology.

There are growing indications that “GPT” may be understood by the public as referring to a type of AI model rather than a single commercial source.

When a consumer hears “an open-source GPT,” they generally think of a software category, not a specific OpenAI product offering. This shift heavily mirrors historic cases of “genericide,” where once-proprietary brands like Aspirin or Dry Ice became the standard nouns for their respective categories.

ENFORCEMENT EFFORTS VS LEGAL STRENGTH

Despite these hurdles, enforcement activity remains notably aggressive. Companies at the forefront of the AI sector, most prominently OpenAI, have actively opposed third-party trademark applications incorporating the term “GPT” across multiple jurisdictions and have reportedly issued cease-and-desist communications to protect their perceived brand equity.

However, it is important to distinguish between enforcement activity and legally established rights. The initiation of opposition proceedings does not, in itself, establish that a term is distinctive or exclusively associated with a single undertaking. In practice, such proceedings may be commercially driven, and smaller applicants may withdraw due to cost considerations rather than as a result of a definitive determination on the merits.

From a Malaysian law perspective, the question ultimately turns on distinctiveness and consumer perception. In McCurry Restaurant (KL) Sdn Bhd v McDonald’s Corporation [2009] MLJU 1148, the Federal Court emphasised that marks must be assessed as a whole, and that common or descriptive elements cannot be monopolised in isolation. Similarly, in Yong Sze Fun & Anor v Syarikat Zamani Hj Tamin Sdn Bhd [2012] 1 MLJ 585, the court underscored that the distinctiveness of a mark depends on how it is perceived by the relevant public, with descriptive or commonly used terms carrying limited capacity to function as indicators of trade origin.

Against this legal backdrop, the registrability of “GPT” remains uncertain. Where the term is understood by the relevant public as referring to a class of artificial intelligence technology, namely “Generative Pre-trained Transformer” models, its capacity to function as a badge of origin may be significantly diminished. Publicly available records from the United States Patent and Trademark Office (USPTO) further indicate that applications for “GPT” as a standalone mark have faced objections on the basis of descriptiveness.

Notably, there remains a relative absence of publicly reported final decisions conclusively affirming “GPT” as an exclusive and enforceable trademark right. Accordingly, while enforcement strategies may be broad and proactive, their underlying legal foundation, particularly when assessed against Malaysian principles of distinctiveness, appears to remain unsettled.

THE ROLE OF CONSUMER CONFUSION

Under Malaysian jurisprudence, the ultimate litmus test for trademark infringement and relative grounds for refusal under the Trademarks Act 2019 (TMA 2019) is the likelihood of confusion on the part of the public. Malaysian courts apply a strict, time-tested benchmark when evaluating this threshold: the standard of an ordinary consumer of average intelligence acting with imperfect recollection.

If a local corporate client or software buyer encounters tools named “LegalGPT” or “FinanceGPT” in the Malaysian market, would they genuinely believe these applications were created, sponsored, or endorsed by OpenAI?

From a Malaysian legal perspective, an increasingly powerful argument can be made that the sheer coexistence of hundreds of “GPT”-branded services heavily weakens any single entity’s claim for exclusivity. When a specific term is widely adopted by an entire industry, it risks being classified as publici juris, a term that belongs to the public or is common to the trade.

Malaysian apex court jurisprudence (such as the Federal Court’s established principles on comparing composite marks) dictates that courts must look at the marks as a whole. However, when a specific component of a mark is found to be descriptive or common to the trade, its weight as a unique source identifier heavily diminishes.

Consequently, a digital market saturated with “GPT” solutions suggests two distinct realities for the Malaysian consumer:

  • Discerning the Visual Whole: Because “GPT” is ubiquitous, the average consumer’s “imperfect recollection” instinctively discounts the acronym. Instead, they rely on the other distinctive words, logos, or prefixes in the brand name (e.g., focusing on “Legal” or “Finance”) to identify the actual source of the provider.
  • Generic Functional Understanding: The consumer inherently processes “GPT” as a generic functional descriptor, treating it no differently than words like “App”, “Software”, or “System”.

In the absence of clear, empirical evidence of actual consumer confusion within the local marketplace, the distinctiveness of “GPT” as a unique source identifier remains highly open to question under Malaysian law.

If the local tech sector uniformly treats the acronym as an open standard, the Intellectual Property Corporation of Malaysia (MyIPO) or a Malaysian High Court judge would find it difficult to rule that a competitor’s use of “GPT” constitutes a deceptive hook without proving that the core likelihood of confusion, enforcing exclusivity over these three letters, becomes a nearly impossible task.

CONCLUSION

The rapid proliferation of “GPT”-branded products has brought trademark law into direct confrontation with technological reality. Under Malaysian law, the registrability and enforceability of such a term ultimately hinge on distinctiveness and consumer perception, as reflected in section 23 of the Trade Marks Act 2019. Where “GPT” is widely understood as referring to a category of generative AI technology rather than a single commercial source, its capacity to function as a badge of origin is significantly weakened.

At the same time, the ongoing global enforcement efforts by entities such as OpenAI highlight a growing tension between commercial strategy and legal principle. While opposition proceedings and enforcement actions may shape market behaviour in the short term, they do not, in themselves, resolve the fundamental question of whether “GPT” is legally capable of exclusive appropriation. In the absence of clear and authoritative judicial determinations, the status of “GPT” remains uncertain and continues to evolve across jurisdictions.

For businesses operating in Malaysia, this creates both risk and opportunity. While incorporating “GPT” into branding may invite scrutiny or opposition, the current legal landscape also suggests that such claims to exclusivity may not be absolute. Careful brand structuring, with emphasis on distinctive elements beyond “GPT”, will be critical in navigating this emerging space.

If you would like to assess the registrability or enforcement risks associated with your brand, our Intellectual Property team at Quality Oracle would be pleased to assist. We provide strategic advice on trademark clearance and dispute management across Malaysia and beyond.

The information provided in this article/newsletter is for general informational and educational purposes only and does not constitute formal legal advice.