Dell Attempts to Purloin “Cloud Computing” Trademark
Updated 8/18/2008: Sam Johnston reports in his “Dell Denied: 'Cloud Computing' both desciptive and generic” post of of 8/15/2008 that the US Patent and Trademark Office (USPTO) have denied Dell, Inc.’s application for a trademark (actually a servicemark) on “Cloud Computing.”
Updated 8/3/2008: See “Subsequent Events”
Dell Inc. isn’t short on chutzpa. The Round Rock computer maker has redefined the term “Cloud Computing” to cover:
Design of computer hardware for use in data centers and mega-scale computing environments for others; customization of computer hardware for use in data centers and mega-scale computing environments for others; design and development of networks for use in data centers and mega-scale computing environments for others; Consulting services for data centers and mega-scale computing environments in the fields of design, selection, implementation, customization and use of computer hardware and software systems for others; Consulting services for data centers and mega-scale computing environments in the fields of design, selection, implementation, customization and use of computer hardware and software systems for others.
and is attempting to register a trademark (®) for the term. None of the preceding terms conform to the accepted definitions for cloud computing of which I’m aware. Wikipedia’s entry is closest to the mark for me.
If there’s one computer company I don’t associate with cloud computing or any other form of new or high technology, it’s Dell. Dell is famous primarily for its poor customer service and miserly research and development budgets.
The story and a link to Dell’s application to the U.S. Patent and Trademark Office (USPTO) is in the Washington Post’s “Dell Tries to Trademark 'Cloud Computing” article of August 2, 2008.
I’m not an attorney, but I’ve applied for and obtained registered trademarks for products in long-past avatars. I also obtained a sever-figure settlement from a former business parter for, in part, infringing my Helix® registered trademark for liquid flowmeters.
It was my understanding that you must declare a first use (in commerce) date on the registration papers to obtain a registered trademark (®). The first requirement might have changed, because the application’s First Use and First Use in Commerce dates show “DATE NOT AVAILABLE.” However, the application appears to be of the “Intent to Use” type, which requires filing an “Allegation of Use” within six months.
If I had seen the Notice of Publication in time, I would have filed an opposition.
Subsequent Events
Cyndy Aleo-Carreira’s “Dell tries to trademark ‘cloud computing’” article of August 1, 2008 on the The Industry Standard site has the following comment by Owen Smigelski:
I'm a trademark attorney, and Dell has done more than just "try" to use the trademark. The application was published for opposition, no one lodged any complaints, and now the trademark will proceed to registration (once Dell submits examples of its trademark use). The mark can later be disputed once it is registered by anyone who believes they will be harmed by the registration of the trademark by Dell. Examining Attorneys at the USPTO usually catch phrases that are generally used by the public, thus I am surprised they let this one through with approval.
Here's a direct link to check the status of the application: http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77139082
Dell is already using the common-law trademark symbol (™) in conjunction with “cloud computing.” Cyndy links to a message from Sam Johnson in the Cloud Computing Google Group. The writer had “spotted something curious - a trademark (™) symbol associated with 'Cloud Computing' in a Dell press release”:
Dell today announced the availability of the Dell Cloud ComputingTM Solution, the first offering developed by its new business unit – the Dell Data Center Solutions Division.
There are no “goods” included in Dell’s Class Status list, only “services.” Therefore, it seems to me that Dell should have applied a common-law servicemark (℠) symbol rather than a trademark (™). But (according to Wikipedia, these common-law servicemarks and trademarks have no legal standing. The HTML entity for a servicemark is ℠ or ℠, which appears as ℠.
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