OpenAI is taking over… or not?
AI seems to be the key to everything — from smart tools to smart marketing.
But one thing still requires a human touch: creating a distinctive brand name. Even AI pioneer OpenAI ran into legal reality when it tried to register its own name.
OpenAI, Inc. applied to register the word mark OPENAI with the EUIPO, covering software, digital applications, internet and communication services, cloud solutions, and online networks.
On December 5, 2024, the application was refused. According to the European Union Intellectual Property Office, the relevant public would interpret the mark as “openly accessible artificial intelligence” — in other words, AI services available to everyone. The conclusion: the name OPENAI lacks distinctiveness and therefore cannot be registered.
OpenAI, Inc. disagreed and filed an appeal in January 2025. The company argued that the word OPEN has multiple meanings, and that the application covered various types of products and services, each requiring its own justification for registrability.
The EUIPO’s Board of Appeal has now upheld the original refusal. In the context of the goods and services applied for, the word OPEN may be understood to mean that the IT-related offerings are freely accessible or available. Within the field of information technology, the mark has a clear, unambiguous meaning.
OpenAI, Inc. also brought a third argument to the table: that OPENAI has acquired distinctiveness through use, submitting several examples to support this. However, the Board emphasized that this is a separate claim from the intrinsic distinctiveness of the mark. To succeed, the applicant must provide substantial evidence of acquired distinctiveness throughout the entire European Union.
The EUIPO remains firm in its position: OPENAI lacks distinctiveness and cannot be registered. The only remaining path to registration is through proof of acquired distinctiveness. Given OpenAI’s level of fame, this is far from impossible. But will OpenAI, Inc. be able to provide sufficient evidence that OPENAI has indeed become distinctive through use?
We’ll be watching — and we’ll keep you posted.
Author: Erwin Haüer
Bio: Erwin is a trademark attorney and, as the managing partner, in charge of IT and Information Management. He works extensively with startups and scale-ups, while his clientele also includes numerous multinational corporations. Erwin possesses a sharp wit and a keen eye for remarkable trademark news and curious brand infringements.