Tag Archives: Dell

Dell’s cloudy IP planning

Originally posted 2011-05-23 16:57:10. 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UPDATE: And now, evidently… it doesn’t even have the registration: The Notice of Allowance was withdrawn today and the application has been “returned to examination.”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?

Shot to Dell

Sunset of a waning winter

Dell’s CLOUD COMPUTING trademark application has gone up in a vapory mass of smoke:

Dell cannot register “cloud computing” as a trademark because the term is a generic one describing services offered by many companies, the U.S. Patent and Trademark Office (USPTO) has said in an initial ruling.

In denying Dell’s application, the USPTO included dozens of news stories and other material supporting its contention that cloud computing is a widely-used term of art for the technology industry.

Indeed, if you click through the “application” link above to the “trademark document retrieval” link at top, then to the link for the August 12th office action, you can survey that extensive literature.

Lots of people have their trademark applications denied, and indeed many of the best trademark practitioners get a lot of them bounced because they’re pushing the envelope.  So it isn’t all that fair that Dell’s fell off its cloud so loudly.

Anyone see any silver linings lying around?