Background

In June 2023, OpenAI applied to register OPENAI as an EU trade mark across classes 9, 38, 42 and 45, including downloadable media, non-fungible tokens (NFTs), computer software, and scientific and technological services.

OPENAI is registered as a trade mark in the UK and in several other countries. None of this helped here. The examiner at the EUIPO partially refused the application, allowing only the telecommunications services in class 38, on the basis that it lacked distinctive character and was purely descriptive under Article 7(1)(b) and (c) EUTMR. The EUIPO dismissed OpenAI’s appeal, finding the words “open” and “AI” descriptive of the nature and intended purpose of the goods and services: ”open” meaning available or unrestricted and “AI” the familiar abbreviation of the expression “artificial intelligence”.

The EUIPO found that the sign would not be read as a badge of origin. Instead, it would tell the relevant public directly that the goods and services at issue are linked to, or operate by means of, “freely accessible artificial intelligence”.

Invoking equal treatment, OpenAI also pointed to similar marks already on the EU register and to its registrations elsewhere. Neither helped: The Board of Appeal held that earlier decisions do not bind the office, and the EU system is autonomous, so registrations in other countries carry no weight before the EUIPO.

OpenAI then brought an action before the General Court of the European Union, seeking to have that decision set aside.

OpenAI’s case

OpenAI submitted that the Board of Appeal had read too much into the sign. OPENAI was a complex sign with no meaning of its own, it said, and so could not describe a characteristic of anything. It also objected to the Board of Appeal refusing everything at once, on blanket reasoning that drew no distinction between one good or service and the next.

Decision 

One meaning sufficient: The court began from a settled principle: a sign must be refused registration if at least one of its possible meanings designates a characteristic of the goods or services concerned.

On that basis the court agreed that the EUIPO had been entitled to reach for the dictionary: ”open” in combination with ”AI” could refer to accessible or unrestricted artificial intelligence. OpenAI objected that ”open” is not shorthand for ”open source”, but that missed the point. The term carries many meanings, and only one of them needed to be descriptive for the mark to be denied registration.

Two words, no space: On OpenAI’s argument that OPENAI is a neologism (an unconventional arrangement of words lacking any lexical meaning) the court fell back on settled case law about how people actually read. Faced with a word sign, the average consumer breaks it into elements that resemble familiar words. To escape Article 7(1)(c) EUTMR, such a mark must give an impression perceptibly different from the sum of its parts. The lack of a space between the “OPEN” and “AI” elements was not enough to create that difference.

And since OPENAI follows the normal grammatical rules of English (adjective, then noun), people would read it as meaning accessible artificial intelligence.

Does every class involve AI? OpenAI’s further argument was that not everything it had applied for was AI-related, criticising the finding that goods and services in classes 9, 42 and 45 were AI-based. The court disagreed: people would assume these services run on accessible AI, and in each class the goods and services claimed did relate to it.

The mark was descriptive. The action was dismissed.

Famous, but not distinctive

That a company as prominent as OpenAI should encounter the descriptiveness objection raises a question about how brands in emerging sectors get named. The vocabulary of a new technology tends to settle quickly, and often around the words its own developers used first. “AI” was specialist shorthand a decade ago and is ordinary English now. A company that names itself in that vocabulary risks describing its field rather than distinguishing itself within it, and the difficulty is there from the outset, rather than arising later as the term becomes common.

The better a name explains the product, the weaker it potentially is as a mark: the words that make something instantly understandable are the words the register is least willing to hand over. As a result, we may see more technology companies falling back on Article 7(3) EUTMR and proving distinctiveness acquired through use.

OPENAI may not be inherently registrable, but that does not mean the sign cannot function as a trade mark. OpenAI’s evidence of recognition among consumers failed here only because reputation is beside the point under Article 7(1)(c). It goes to the heart of an acquired distinctiveness claim, and the EUIPO has said it will examine OpenAI’s subsidiary Article 7(3) claim once the decision is final.

Whether OpenAI can meet that standard is not straightforward. Distinctiveness has to be shown as at the filing date (June 2023, barely six months after ChatGPT reached the public) and at a point when the name most consumers knew was ChatGPT rather than OpenAI. Later evidence counts only so far as it supports conclusions about the position at filing, and much of the recognition OpenAI would want to rely on may have come after that point. It will also need to show the sign worked as a badge of origin for each of the goods and services claimed, which may be more challenging for the more peripheral entries in classes 42 and 45.

Takeaways

There is a broader lesson in that timing. A company growing this fast will be famous long before it is protected, and the EU system asks what the public thought on the day you filed, not what it thinks by the time you reach Luxembourg.

For businesses building brands in AI and other fast-moving sectors, the practical response is to separate the descriptive from the distinctive at the outset.

A name that explains what the product does might win recognition quickly, but it may struggle at the EUIPO, and pairing it with a coined element or a figurative mark should be a cheaper route to protection than an acquired distinctiveness claim built on years of evidence. However, the scope of protection may not be the same.

Whether a name gets through can also vary within a single application. Class 38 survived, while classes 9, 42 and 45 did not, so a filing strategy should assume each class will be judged separately rather than the application standing or falling as one.

Any applicant who may need to fall back on acquired distinctiveness should be gathering evidence of use as they go.

It requires proof of what the public understood on the filing date, and a picture of that day is harder to reconstruct later. 

Case details at a glance

Jurisdiction: EU
Decision Level: General Court 
Parties: OpenAI Inc v EUIPO
Date: 15 July 2026 
Citation: T-555/25
Decision: https://dycip.com/t-555-25