"That prompt could have been better" – when ChatGPT defends a case

The use of AI, such as ChatGPT, has become indispensable across various professions.

The legal sector is no exception, with AI increasingly making its way into legal proceedings. But is it wise to rely on an AI tool for legal representation? Let’s take a closer look at a case in the Benelux where AI played a role in a trademark opposition procedure.

Recently , Penguin Books Limited filed an opposition against the trademark application for ARTPENGUIN, a brand featuring a penguin logo intended for products like pencils and brushes:

 Twee keer recent achter elkaar

The opposition was based on multiple word trademarks for "PENGUIN" and logos featuring a penguin. While the legal decision itself was not groundbreaking, one striking detail stood out: the applicant (defendant) listed ChatGPT as their legal representative.

ChatGPT? Yes, that’s correct. While AI-generated defenses have likely been used before in opposition proceedings, this case marks the first time that it was explicitly acknowledged in a published decision. It became evident through the following ‘feedback’ from the Benelux trademark office regarding the AI-generated defense:

"The defendant mistakenly compares the word element ‘Artpenguin’ with the word element ‘Penguin Books,’ even though the latter does not appear in any of the cited rights. That prompt could have been better."

Beyond this remark, the decision does not delve into the broader discussion on AI or ChatGPT in legal proceedings; the trademark office assessed the arguments solely based on their legal merit. In previous cases, ChatGPT’s explanation of a word has been accepted as evidence. However, in those instances, the arguments were still drafted by a trademark attorney.

As for the legal outcome, Penguin Books Limited was successful: the ARTPENGUIN application was rejected due to a likelihood of confusion, as the trademarks were visually, phonetically, and conceptually similar. However, the application was allowed for products like paint and varnish, which were not contested in the opposition.

While the use of AI in legal matters is innovative, this case reaffirms that traditional trademark expertise remains decisive. AI can be a useful tool, but human oversight and expertise remain essential.

Author: Ellen Gevers

Bio: Ellen is a trademark attorney and managing partner at Knijff, and a welcome speaker and writer in the world of IP. Ellen has spoken at conferences organized by ECTA, INTA, MARQUES and BMM, and her articles are published in the BMM and INTA Bulletin. Ellen is involved as a teacher and board member in the educational program for Benelux Trademark and Design Attorneys (BMM) and paralegals. Next to that, Ellen is involved in the weekly publication of the INTA Bulletin. It’s safe to say Ellen knows what she’s talking about.