Why Did the EUIPO Reject the OPENAI Trademark?

The European Union Intellectual Property Office (EUIPO) has denied OpenAI, Inc.’s application to register the “OPENAI” trademark.

The rejection is based on the lack of distinctiveness and the descriptive nature of the mark, in accordance with Articles 7(1)(b) and 7(1)(c) of the European Trade Mark Regulation (EUTMR).

This ruling directly impacts OpenAI’s intellectual property protection strategy, requiring the company to reconsider and redefine its approach.

What Are the EUIPO’s Grounds for Refusal?

1. Lack of Distinctiveness (Article 7(1)(b) EUTMR)

To qualify for trademark registration, a mark must possess distinctive character, enabling consumers to identify the commercial origin of the goods or services. The EUIPO found that “OPENAI” does not meet this requirement for the following reasons:

• It is a combination of “Open” and “AI” (artificial intelligence), meaning “open or accessible artificial intelligence”.
• It lacks any graphic or linguistic elements that would make it unique or original.
• Its grammatical structure follows a common pattern in the technology sector, without introducing significant alterations.

2. Descriptive Nature (Article 7(1)(c) EUTMR)

EU law prevents the registration of signs that describe the characteristics of the goods or services they identify. The EUIPO argued that:

• English-speaking consumers will perceive “OPENAI” as a direct reference to open and accessible artificial intelligence technologies.
• The expression has a clear and specific link to OpenAI, Inc.’s products and services, such as software, AI platforms, cloud services, and identity verification.
• The combination of “Open” and “AI” follows a standard industry naming structure and does not generate a new or distinctive meaning.
• The fact that “OPENAI” is written as a single word does not alter public perception, as consumers will still recognize “Open” and “AI” separately.

OpenAI, Inc.’s Defense Arguments

OpenAI presented several arguments in its attempt to register the mark, including:

• “OPENAI” has no intrinsic, specific meaning.
• There is no prior descriptive use of “OPENAI” in the market.
• Similar trademarks have been registered in other jurisdictions.
• The combination of “Open” and “AI” creates a distinctive concept.
• The mark has acquired distinctiveness through use.

EUIPO rejected these claims with the following counterarguments:

• The relevant public will perceive the mark as descriptive in relation to the applied-for goods and services.
• A term does not need to be currently used descriptively in the market to be considered descriptive; it is sufficient that it could be used descriptively in the future.
• Trademark registrations in other countries do not bind the EUIPO, as the EU trademark system operates autonomously.
• OpenAI did not provide sufficient evidence to demonstrate that the mark had acquired distinctiveness through use in the EU.

Possible Future Scenarios

1. Filing an Appeal Before the EUIPO Board of Appeal

In this appeal, OpenAI could:

• Present evidence showing that the public already associates “OPENAI” with its business.
• Attempt to prove that the trademark has acquired distinctiveness through use in the European market.

2. Revising Its Trademark Strategy in the EU

Alternatively, OpenAI may consider:

• Modifying the mark to include additional distinctive elements.
• Registering a figurative trademark incorporating designs or graphics.
• Seeking national trademark protection in specific EU member states.

Conclusion

Companies and startups must exercise caution when selecting names that may be deemed descriptive, as they risk encountering similar registration challenges.

While OpenAI still has the option to appeal the decision or revise its branding strategy, the ruling underscores a fundamental principle of EU trademark law: trademarks that clearly describe technological characteristics face significant hurdles in obtaining registration in the European Union.