CD PROJEKT S.A. is a widely known video game developer. The studio’s latest release is the game “Cyberpunk 2077.” To promote the game, the company undertook numerous actions around the world. One such action was the registration of several trademarks related to the game’s title, including the word mark “Cyberpunk” within the European Union. However, this move faced opposition from other businesses.
On May 5, 2023, the European Union Intellectual Property Office (EUIPO) deemed the word trademark “CYBERPUNK,” registered by CD PROJEKT, as descriptive under Article 7(1)(c) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union Trademark. This served as grounds for the mark’s cancellation. The decision stemmed from a dispute between CD PROJEKT and a Polish company.
A company based in the Tri-City area operating in the dietary supplements industry filed a request for the invalidation of the word trademark “Cyberpunk” EUTM 15991342, registered in classes 9 and 41 and owned by CD PROJEKT. The company argued that the mark was descriptive and lacked distinctiveness, providing grounds for its invalidation under Article 59(1)(a) in conjunction with Article 7 of the EU Trademark Regulation. The applicant asserted that “cyberpunk” is a term for a subgenre of science fiction focusing on societies in technologically advanced futures. To support this claim, definitions of the word “cyberpunk” from various sources, including dictionaries, were presented. The fact that the game is set in a world characteristic of this subgenre, in the applicant’s view, confirmed the descriptive nature of the mark. Furthermore, it was argued that no company owns or should own exclusive rights to any genre or subgenre of cultural works. This genre also predated the trademark application by many years.
In its reasoning, the EUIPO emphasized that descriptiveness is grounds for invalidating a mark because descriptive terms should remain available for use by all market participants.
The office referred to the definitions of “cyberpunk” presented during the proceedings and concluded that, in line with these definitions, the word indeed describes a subgenre with specific features, such as a futuristic world and the dominance of computers over society. Given the characteristics of the genre and the trademark in question, it was determined that the word component of the mark is descriptive.
Moreover, the EUIPO rejected CD PROJEKT’s argument that the word was first used in 2016, pointing out that the first definitions of “cyberpunk” date back to 1984, following the publication of Bruce Bethke’s short story dealing with futuristic themes. Also dismissed was the argument that CD PROJEKT held rights to the Cyberpunk universe through the acquisition of U.S. trademarks from the publishers of the tabletop game on which the video game is based. The EUIPO’s Cancellation Division clarified that it is not bound by decisions made in third countries such as the United States.
Taking into account the arguments from both parties, the EUIPO sided with the applicant and ruled that the word mark “Cyberpunk” registered by CD PROJEKT S.A. is descriptive and should be invalidated in the relevant classes.
CD PROJEKT S.A. appealed the decision of the EUIPO Cancellation Division. However, upon review, the EUIPO Board of Appeal upheld the contested decision.
In its justification, the Board noted that the challenged trademark consists of the word “CYBERPUNK,” which would be understood by the relevant public, at least in English-speaking areas of the European Union. The contested goods in class 9 include films, computer programs, video games, and computer platforms. The services in class 41 cover game-related services (including digital services), the provision of related information, the organization of entertainment events, education, and the supply of online publications. These goods and services are mainly directed at the general public, especially consumers who use video games, computer games, and films as entertainment, but also to business clients in the entertainment and gaming sectors.
Further, the EUIPO Board of Appeal cited definitions of “CYBERPUNK,” noting that within the science fiction community, it is a genre often featuring countercultural antiheroes trapped in a dehumanizing, high-tech future. While the genre’s roots trace back to fiction from the 1940s and 1950s, it matured over time. The term was coined by writer Bruce Bethke in 1980 for his short story titled “Cyberpunk,” combining “cybernetics” (the study of replacing human functions with computerized systems) and “punk” (a loud, nihilistic youth culture from the 1970s and 1980s). The term truly gained traction in 1984 after the publication of William Gibson’s novel Neuromancer.
The EUIPO Board of Appeal, like the Cancellation Division, concluded that “CYBERPUNK” refers to a genre featuring futuristic worlds often populated by antiheroes or countercultural figures and dominated by computers. This meaning would be immediately recognized by relevant English-speaking consumers as a specific science fiction genre, regardless of whether they are professionals or average consumers interested in the goods and services at hand.
The disputed designation was ultimately found to be descriptive for all contested goods and services. However, the case has not yet been fully resolved, as CD PROJEKT S.A. raised the issue of acquired distinctiveness for the “CYBERPUNK” mark. The matter has thus been referred back to the Cancellation Division for further examination of whether the mark has acquired distinctive character under Article 7(3) of the EUTMR.
The case is particularly interesting as it is part of a broader dispute between the Polish dietary supplement producer and CD PROJEKT S.A.
The issue of public access to the term “CYBERPUNK” for entities operating in the video game and film industries has also been discussed within the gaming community. A 2017 article titled “Dear CD Projekt Red: Please Stop Trying To Get Trademarks On The Common Name Of A Genre”, published on:
voiced a number of concerns and objections regarding the company’s attempt to secure exclusive rights to the word “CYBERPUNK” in the context of video games. CD PROJEKT S.A. responded to these concerns on its profile on x.com.
