Background
OpenAI, Inc. applied to register “OPENAI” as an EU trade mark with the European Union Intellectual Property Office (EUIPO). The EUIPO refused registration on the ground that the mark is descriptive of the applied-for goods and services — primarily software, cloud computing, and identity-verification services in Classes 9, 42, and 45. OpenAI challenged the refusal before the EU General Court (Tribunal de l’Union européenne), arguing that the combination “OPENAI” is a coined, distinctive term that does not directly describe any characteristic of its services.
The case attracted attention across the technology and trademark communities, as it raised a fundamental question: can a company whose name was chosen to signal transparency and openness in artificial intelligence turn that very concept into an exclusive trademark right?
The Court’s Holding
The EU General Court (Eighth Chamber) dismissed OpenAI’s application and affirmed the EUIPO refusal. The court held that “OPENAI” is descriptive under Article 7(1)(c) of the EU Trade Mark Regulation (Regulation (EU) 2017/1001, “EUTMR”), which bars registration of marks that “consist exclusively of signs or indications which may serve, in trade, to designate … the kind, quality, [or] intended purpose … of the goods or services.”
The court’s reasoning was straightforward. “Open” is a common English adjective meaning freely accessible or unrestricted. “AI” is a widely recognized abbreviation for artificial intelligence. The combination “OPENAI” forms a standard adjective-plus-noun construction with no unusual linguistic properties and directly conveys, for the English-speaking public within the EU, that the designated goods and services relate to “openly accessible artificial intelligence.”
The court rejected OpenAI’s arguments that the mark is a “coined” or “inventive” combination that acquires distinctiveness through its unusual juxtaposition. In the court’s assessment, both constituent elements are independently descriptive of AI services, and their combination does not create any additional meaning sufficient to overcome the descriptiveness objection. The court also dismissed OpenAI’s reliance on trademark registrations in other jurisdictions — EU trademark law is autonomous, and decisions by foreign trademark offices are not binding. OpenAI was ordered to pay EUIPO’s costs.
The court did not separately analyze whether the mark also lacked distinctive character under Article 7(1)(b), as the finding under Article 7(1)(c) was sufficient to refuse registration. OpenAI retains the option to pursue registration on the basis of acquired distinctiveness through use under Article 7(3) EUTMR — a much higher evidentiary bar requiring proof that the mark has, through intensive use across the EU, come to be perceived by relevant consumers as identifying a single commercial source.
Key Takeaways
- AI-descriptive brand names face a high bar in Europe. The ruling confirms that brand names composed of generic descriptors of AI functionality (“open” + “AI”) will struggle to qualify for EU trademark protection on their inherent character alone. Companies should expect EUIPO to scrutinize AI-themed marks closely for descriptiveness.
- Acquired distinctiveness remains available but is burdensome. OpenAI can still seek EU registration by proving that “OPENAI” has acquired distinctiveness through use across the 27 EU member states — a demanding showing requiring extensive consumer survey evidence and commercial data for each member state.
- EU trademark autonomy. The court’s rejection of OpenAI’s argument based on foreign registrations underscores that EUIPO and the EU courts do not defer to USPTO or other national trademark authorities. A mark registered in the United States is not necessarily protectable in the EU.
- Broader implications for AI companies. Other companies whose brand names incorporate descriptive AI terms (“open,” “smart,” “intelligent,” “generative,” “deep,” combined with “AI” or “ML”) should audit their EU trademark portfolios in light of this ruling.
Why It Matters
OpenAI is one of the most recognized brands in artificial intelligence globally, and the “OPENAI” name has been in widespread use since the company’s founding in 2015. The EU General Court’s ruling does not strip OpenAI of any rights it already has — the company can continue operating under its name in Europe through common-law recognition, national trademark rights where registered, and passing-off protections. But it cannot rely on an EU trade mark (EUTM) registration to enforce its brand across all 27 EU member states.
For the broader AI industry, the ruling signals that EUIPO and the EU General Court will apply rigorous descriptiveness analysis to AI-themed marks. Companies launching AI products with names that combine descriptive terms should consider whether their chosen names are legally protectable in Europe — and should invest in distinctive, fanciful marks or build acquired-distinctiveness records early if they want durable EU trademark rights.