On 15 June 2023, OpenAI, Inc. filed an application for registration of the word mark OpenAI covering numerous goods and services in classes 9, 38, 42 and 45 (software, PaaS platforms, cloud computing, etc.). The EUIPO rejected the application for most of the goods and services on the ground that trademark was descriptive and devoid of distinctive character (Article 7(1)(b) and (c) of the EUTM Regulation). The Board of Appeal upheld that refusal (R 190/2025-5) and OpenAI decided to bring the matter before the General Court.

The Court recalls the key principles for assessing the descriptive character of a trade mark:

• The relevant public (English-speaking public at large and professional public) immediately understands ‘open’ as meaning ‘not closed or barred; available;’ and ‘AI’ as the abbreviation for ‘artificial intelligence’.
• It does not matter that OPENAI may have multiple meanings: a sign must be refused registration if at least one of its possible meanings designates a characteristic of the goods or services concerned.
• The absence of a hyphen and the ‘adjective + noun’ structure of the term do not create a fanciful neologism, and therefore do not give an impression sufficiently different from that produced by the mere juxtaposition of the words of which it is composed to alter its meaning or scope.
• A general reasoning may be used for all of the goods all the goods and services covered (software, NFTs, cloud services, identity verification, etc.), which have the common characteristic of being based on or driven by freely accessible artificial intelligence.
• The reputation of the sign is irrelevant at this stage under Article 7(1)(c); but the proceedings will resume for the purposes of examining the applicant’s alternative claim under Article 7(3), and OpenAI’s reputation may, on this occasion, be usefully invoked in an attempt to secure a different outcome.

This judgement highlights the importance of a brand strategy that is defined from the outset and is therefore distinctive. Our staff remain at your disposal for any further information.