When the Name Describes the Product: Why “OPENAI” Is Not Inherently Protectable as an EU Trade Mark
From a marketing perspective, a name can be attractive precisely because it explains the offering immediately. Under trade mark law, however, it is exactly this descriptive character that can prevent the name from being protected as a trade mark.
What the public immediately understands as a description of a product or service generally may not be monopolised as a word mark. This is because terms that merely describe the nature, purpose or characteristics of an offering must also remain available to competitors to describe their own products and services, and may therefore not be reserved for a single business.
Precisely because such a term describes the offering directly, it is in principle excluded from registration as a word mark. The reputation of the business behind it changes nothing in this respect at this stage of the examination.
By its judgment of 15 July 2026, the General Court of the European Union has upheld the refusal of the word mark “OPENAI” for certain software and IT services on account of its descriptive character (General Court, judgment of 15 July 2026, T‑555/25).
What the case was about
By decision of 5 December 2024, the European Union Intellectual Property Office (EUIPO) had partially refused the application for the word mark “OPENAI” for certain software and IT services, including cloud computing. The Fifth Board of Appeal of the EUIPO upheld this refusal on 10 June 2025.
OpenAI brought an action against this before the General Court and was unsuccessful (T‑555/25). In the General Court’s view, the relevant English-speaking public understands the designation “OPENAI”, in relation to the goods and services concerned, as a reference to artificial intelligence that is accessible, unrestricted or transparent. The designation thus directly describes a possible kind, function or intended purpose of the offerings.
The decisive legal basis for the refusal is Art. 7(1)(c) of the EU Trade Mark Regulation (EUTMR). Under that provision, signs are excluded from registration which may describe characteristics of the goods or services claimed. As this ground for refusal was already made out, the General Court did not need to examine separately whether the designation also lacks distinctive character under Art. 7(1)(b) EUTMR.
Neither the argument that “OPENAI” is a coined word with no fixed meaning nor the reference to earlier registrations by the EUIPO and to rights in more than 30 other countries convinced the General Court.
The decision is not yet final: an appeal to the Court of Justice of the European Union (CJEU) remains possible.
Two descriptions do not yet make a trade mark
“Open” plus “AI”: why the combination is not enough
It is not only individual descriptive terms that are, as a rule, ineligible for registration as a trade mark. Their mere combination, too, does not in principle result in a protectable trade mark. This applies even where the combination sounds good, is memorable or designates the offering particularly aptly.
According to settled case law, a combination of several descriptive terms generally remains descriptive as an overall designation where the public understands it merely as the sum of its parts. Three fundamental decisions illustrate this line of authority:
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CJEU, judgment of 12 February 2004, C-363/99 “Postkantoor”: The word combination “Postkantoor”, made up of “Post” and “Kantoor”, remains descriptive because it shows no perceptible difference from the mere sum of its parts.
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CJEU, judgment of 12 February 2004, C-265/00 “Biomild”: The designation “BIOMILD” for foodstuffs remains descriptive because the components “bio” and “mild” are combined without any unusual alteration of their linguistic or substantive meaning.
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CJEU, judgment of 23 October 2003, C-191/01 P “Doublemint”: For a refusal, it is sufficient if a designation describes a characteristic of the goods or services claimed in at least one of its possible meanings. Ambiguity therefore does not automatically lead to protectability.
An overall designation capable of protection can arise where the word combination is linguistically unusual or conveys an independent meaning that goes beyond the mere addition of its components, as the CJEU already stated expressly in “Postkantoor” and “Biomild”. In the General Court’s view, this was precisely what was lacking in the case of “OPENAI”: the terms “open” and “AI” are combined in an ordinary manner, without generating a new or surprising meaning.
The same risk exists for numerous designations in the software and platform sector that combine additions such as “Smart”, “Cloud”, “Auto” or “Open” with a term for the service offered. The more directly such a combination describes the nature, purpose or characteristics of the offering, the more likely it is to be understood as a factual statement rather than as a protectable indication of origin. Businesses should take account of this tension between promotional clarity and eligibility for trade mark protection already when choosing a name.
Foreign trade mark protection is not a ticket to the EU
Why foreign registrations do not count in the EU
A trade mark registration in another country does not guarantee that the same designation will also be registered in the European Union.
A registration in the USA, the United Kingdom or any other country does not mean that the same designation is also eligible for trade mark protection in the European Union.
Foreign registrations bind neither the EUIPO nor the EU courts, because eligibility for protection is assessed independently under EU trade mark law and from the perspective of the relevant public in the EU. The General Court expressly stated this: foreign registrations have no binding effect for the assessment under EU trade mark law.
This can become problematic for internationally active businesses if they are already using a name in the European Union and only subsequently discover that it cannot be registered there as a word mark.
Trade mark protection through acquired distinctiveness
Well known, but not automatically protected
Even a term that was originally descriptive can obtain trade mark protection if the public has, as a result of its use, come to understand it as an indication of a particular business. This so-called acquired distinctiveness is governed by Art. 7(3) EUTMR.
In the proceedings before the General Court, however, the reputation of the designation did not yet help OpenAI. The General Court examined solely whether “OPENAI” is descriptive of the goods and services claimed in terms of its own meaning. For this examination under Art. 7(1)(c) EUTMR, the actual use of the sign and the reputation it has thereby acquired are not relevant.
This does not mean, however, that the reputation of “OPENAI” is irrelevant to trade mark protection. It may become relevant at the next, separate stage of the examination: OpenAI has argued in the alternative that the designation has acquired distinctive character through its intensive use. The EUIPO has not yet taken a final decision on this claim of acquired distinctiveness.
The General Court’s judgment therefore clarifies only that “OPENAI” is inherently descriptive for the goods and services concerned. Whether the designation can nevertheless now be registered as a trade mark on the basis of its use remains open.
Conclusion: memorable is not the same as registrable
A name can be comprehensible, catchy and at the same time protectable under trade mark law. However, anyone who, when choosing a name, relies above all on the term describing the offering as directly as possible risks ending up with a name that works in promotional terms but cannot be monopolised as a word mark.
The “OPENAI” case shows that even a name that is known worldwide can be descriptive by nature. Whether the designation will nevertheless obtain trade mark protection through acquired distinctiveness on the basis of its intensive use has, however, not yet been decided.
Businesses should therefore check trade mark protectability already during name development. An early check is regularly simpler and more cost-effective than securing an already established but descriptive name after the fact through alternative protection strategies or the laborious proof of acquired distinctiveness.
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