Dell defends its 'cloud computing' trademark bid

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Lawyers point out that the term may be considered generic

By Patrick Thibodeau | Framingham | Tuesday, 5 August, 2008

Dell's trademark of the ubiquitous, commonly used term "cloud computing" is one of those eyebrow-raising events that immediately begs the question: How is that possible?

The simple answer is that Dell is proving that it is possible; it's in nearly the final stretch of the US Patent and Trademark Office approval process.

David Frink, a Dell spokesman, defends the effort, noting that in the year since it applied for its the "cloud computing" trademark, no one has heretofore opposed it.

"The intent is to protect our intellectual property in our growing cloud computing business," says Frink. "Our intent is not to stop others from using the term."

The trademark was applied for at about the same time that Dell created the Dell Cloud Computing Solutions unit. It is the creation of that business that's the genesis of Dell's trademark, says Frink. The 2007 press release announcing the unit includes a trademark symbol on the name.

Frink says the trademark will not prevent others in the industry from using the term, except in the "narrow" definition it seeks. That definition, in the trademark application, describes "the design of computer hardware for use in datacentres and mega-scale computing environments for others; customisation of computer hardware for use in data centers and mega-scale computing environments for others."

When it was pointed out that the definition Dell provided doesn't sound "narrow", Frink reiterated that the trademark has not been opposed.

Dell's application for the "cloud computing" trademark appears didn't get media attention until recently. The uproar may have been triggered by a post on a Google Groups cloud computing forum.

Whatever caused the controversy, it's late in the game. Dell's "cloud computing" trademark is in the trademark office's Notice of Allowance phase, nearly the final step. Once Dell shows that it is using this term, it will receive a Certificate of Registration.

That registration doesn't preclude further action by others. Third parties "can still petition to cancel the registration on the ground that the mark is merely descriptive", says Peter S Sloane, a lawyer at Ostrolenk Faber, an intellectual property law firm in New York.

Sloan points out that Wikipedia defines cloud computing "as a 'style' of computing and a 'general concept.' "These definitions," he says, "are not consistent with any claim to exclusivity of the term as a trademark."

Joe Englander, an intellectual property lawyer at another firm, Shutts & Bowen, also sees challenges ahead for the trademark. The term cloud computing is "generic" for computers that are connected to the internet, he says.