Dell’s cloudy IP planning

Originally posted 2008-08-07 10:36:04. Republished by Blog Post Promoter

Has anyone figured this out?

Dell’s newly-acquired trademark for the term “cloud computing” may have all the durability of a glass hammer, meaning it will shatter the first time they try to use it. The law is not exactly on the company’s side in this argument. . . .

The problem for a “cloud computing” trademark is that the term has become generic, widely adopted by the industry at large in the 18 months since Dell first applied for the trademark. . . .

“By now everybody’s using [the term ‘cloud computing’], and the law is quite clear that even though it’s not Dell’s fault, if the phrase is now a generic phrase for that kind of computing, nobody can own a trademark for it, because people need to be able to describe the generic product,” [Jessica Litman, professor of Law and Information at the University of Michigan,] added.

But it could be too late, said Litman. “Dell was unfortunate to pick a phrase that was too close to the kind of phrase everybody was going to use,” she said.

Or, it appears, did use. What appears to be the case is that Dell hoped to get out in front, or close to the front, of the use curve and capture the secondary meaning. It looks as if that’s not going to happen. On the other hand, there’s already LIKELIHOOD OF CONFUSION, of a sort:

“A registered trademark on this term would not give Dell the exclusive use of it,” [Dell’s spokesman] wrote in an e-mail to InternetNews.com. “It would protect us from others using the term specifically as it relates to our solution.”

No it wouldn’t. In fact, by Dell’s lights, you should only be able to use the term — in the only context that matters — as it relates to Dell’s “solution.” That’s what you get with a trademark. But as the clouds disperse and the sun shines its clarifying light on the matter, it appears that notwithstanding a registration, Dell doesn’t really have a trademark anyway.

UPDATE: And now, evidently… it doesn’t even have the registration: The Notice of Allowance was withdrawn today and the application has been “returned to examination.”  Why?  The PTO isn’t saying.  Does “the PTO” read blogs?

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Author:Ron Coleman

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4 Responses to “Dell’s cloudy IP planning”

  1. b
    August 7, 2008 at 7:59 pm #

    Yeah, I’m sure someone at the PTO saw it and had the application pulled.

    I don’t know what you mean by “it.” I certainly wasn’t suggesting this blog was the cause. I was one of the last on the story, anyway. — RDC

  2. b
    August 8, 2008 at 7:51 am #

    Ha! No, I wasn’t being sarcastic. What I meant by “it” was Dell’s application. I’m sure some higher-up at the PTO saw the application mentioned here or on The Trademark Blog or somewhere else in the media this week, and had the application re-assigned to the examining attorney to issue a refusal, which I’d expect in the next couple business days.

  3. b
    August 13, 2008 at 6:34 am #

    And there’s the office action refusing registration…

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