OPENAI EU Trademark Refusal: What AI Companies Should Learn About Descriptive Marks

The commercially important point is that widespread recognition of the OPENAI name did not, by itself, eliminate the descriptive objection. The Court assessed the intrinsic meaning of the sign in relation to the relevant goods and services. A company can therefore build enormous goodwill around a name that was legally weak at the outset.

Of course, use in commerce is not meaningless on all trademark issues. When conditions are met, enterprises can attempt to obtain protection through paths such as "acquiring distinctiveness through use." The prerequisite is that this trademark and its related services or goods have gained sufficient market recognition, and there is enough evidence of use—including sales figures, user data, advertising investment, market share surveys, consumer surveys, and industry awards—to prove that this trademark already points to a specific source of goods or services, rather than just being a description of goods or services. Many trademarks that were initially merely descriptive can acquire distinctiveness after long-term use and promotion. Famous examples include American Airlines, Best Buy, Booking.com, etc. It should be noted that proving the acquisition of distinctiveness requires accumulating a large amount of evidence of use, such as advertising promotion and popularity; enterprises cannot assume that just because a market is successful enough, an inherently descriptive name will naturally become a strong trademark.