OpenAI loses before the General Court
The topic of artificial intelligence touches on virtually every area of law and constantly raises new legal questions. In the case concerning the word mark “OPENAI,” however, it came before the European General Court (GC) as a textbook case of EU trademark law (judgment of July 15, 2026, Case No. T-555/25).
At its core, the case concerned whether the word mark “OPENAI” is descriptive for software-related goods and services. The decision illustrates the essential requirements for the absolute ground for refusal based on descriptiveness and confirms that a sign’s reputation is irrelevant to the assessment under Article 7(1)(c) EUTMR. Nevertheless, OpenAI may still have a potential path for registration.
Background
The U.S. company OpenAI Foundation is best known for its AI tool “ChatGPT” and has already successfully registered various “OpenAI” trademarks around the world. However, the software company has now suffered a defeat before the General Court concerning its application for the EU word mark “OPENAI.”
The EUIPO’s Examination Division had previously refused the trademark application for goods and services in Class 9 (in particular, computer software and apps), Class 42 (including software development services), and Class 45 (identity verification services) on the basis of the absolute grounds for refusal under Article 7(1)(b) and (c), (2) EUTMR. It found that the sign was descriptive of, and devoid of distinctive character for, these goods and services, at least in part of the EU. This assessment was also confirmed by the Fifth Board of Appeal of EUIPO (decision of June 10, 2025, Case No. R 190/2025-5).
The OpenAI Foundation filed a lawsuit against the Board of Appeal’s decision before the General Court.
Decision of the General Court
In its judgment of 15 July 2026, the General Court upheld the Board of Appeal’s decision in its entirety and dismissed OpenAI Foundation’s action. It held that the sign “OPENAI” would be readily understood as “accessible or non-restricted artificial intelligence” and is therefore descriptive of the goods and services in the software sector
The plaintiff had argued that the sign “OPENAI” was a fanciful term because it was not listed in any dictionary and therefore would not evoke any characteristic of the goods and services applied for.
The Court was not persuaded by this argument. It held that the sign merely consists a juxtaposition of the words “open” and “AI.” It neither displays an unusual structure nor constitutes a neologism. The mere absence of a hyphen or space, and the fact that a term is not listed in a dictionary, does not give a sign a fanciful character.
The relevant public, consisting of the English-speaking general public and professional public, can easily recognize the juxtaposed terms “open” and “AI”, even without a separating space. The term “open” is understood as freely available, unrestrictedly accessible, while the element “AI” is perceived as an abbreviation for Artificial Intelligence. Taken as a whole, the sign therefore conveys the meaning “freely accessible artificial intelligence.”
The court also rejected the plaintiff’s argument that the sign was not descriptive because the word “open” has multiple meanings. It referred to established EU case law, according to which a trademark must be refused protection if the sign designates a characteristic of the goods or services applied for in at least of its possible meanings (ECJ, Decision of October 23, 2003, Case No. C-191/01 P, OHIM v. Wrigley, para. 32). It is therefroe sufficient that the public understands the terms “open” and “AI” as freely accessible artificial intelligence in one possible interpretation.
The General Court also confirmed the Board of Appeal’s finding that all of the goods and services at issue in the software sector can be based on, or are driven by, AI made accessible to the general public. The fact that this may not be the primary purpose of the goods and services is irrelevant. The General Court referred to its previous case law and emphasized that, for a sign to be considered descriptive, it is sufficient that it describes only one of the possible uses of the goods and services (by analogy, General Court judgment of May 19, 2021, GluePro, Case No. T-256/20, paras. 49 and 50).
In any event, the sign conveys that the goods and services are related to freely accessible artificial intelligence. By virtue of this direct information, the sign does not fulfil the essential function of a trademark as an indication of commercial origin.
The General Court was also not persuaded by the argument that the trademark “OPENAI” had already been registered in more than 30 jurisdictions worldwide. It underlined that EU trademark law constitutes an autonomous, independent legal system, and that neither the EUIPO nor the EU Courts are bound by the decisions of national trademark offices or courts.
Finally, the plaintiff argued that the sign “OPENAI” already enjoys reputation in the EU. This argument was also unsuccessful. The Court emphasized that the actual use and reputation of a sign are irrelevant to the assessment of the absolute ground for refusal under Article 7(1)(c) EUTMR.
Why the EU trademark application for “OPENAI” could still be successful
Are all chances of registering the word mark "OPENAI" as an EU trademark excluded by the judgment? No. The OpenAI Foundation could still rely on Article 7(3) EUTMR to overcome the absolute ground for refusal under Article 7(1)(c) EUTMR.
Pursuant to Article 7(3) EUTMR, a sign that was found non-distinctive or descriptive may be registered if it has acquired distinctiveness through use. The prerequisite for this is that the sign has been used extensively and, as a result, a significant part of the relevant public perceives it as an indication of the commercial origin of the goods and services.
The OpenAI Foundation had already submitted a subsidiary claim to acquired distinctive character through use pursuant to Article 7(3) EUTMR in conjunction with Article 2(2) EUTMIR. Such a subsidiary claim must be filed no later than with the response to the Examiner’s first objection (Article 2(2)(2) EUTMIR in conjunction with Article 42(2)(2) EUTMR).
This subsidiary claim has the effect that the assessment of acquired distinctiveness can only take place after a final decision has been issued on the descriptiveness of the sign. Consequently, the General Court could not take into account the plaintiff’s arguments concerning the acquired distinctiveness and reputation of the “OPENAI” mark in its judgment, as these factors are irrelevant for the assessment of Article 7(1)(c) EUTMR.
Once the General Court’s decision becomes final, the case will be remitted to the examiner, who will then have to assess whether the sign has acquired distinctiveness through use.
However, the proof of acquired distinctiveness under Article 7(3) EUTMR is subject to stringent requirements. The applicant must demonstrate that the “OPENAI” mark had already acquired distinctiveness throughout the EU for the goods and services applied for prior to the filing date of 15 June 2023.
To do so, the applicant would need to submit extensive evidence (such as specific sales figures, consumer surveys, and advertising campaigns) demonstrating that, before 15 June 2023, a significant part of the relevant public already perceived the mark, in relation to the claimed goods and services, as originating from the OpenAI Foundation.
It remains to be seen whether the applicant will be able to meet this evidentiary burden. We will keep you updated on any further developments in this case.
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