Dell defends its 'cloud computing' trademark bid

Company says trademark was applied for a year ago and no one opposed it

Dell Inc.'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; the firm is in nearly the final stretch of the U.S. Patent and Trademark Office approval process.

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

"The intent is to protect our intellectual property in our growing cloud computing business," Frink said. "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, said Frink. The 2007 press release announcing the unit includes a trademark symbol on the name.

Frink said the trademark wouldn't prevent others in the industry from using the term, except in the "narrow" definition that Dell included in the trademark application. That definition describes "the 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."

After it was pointed out that the definition Dell provided doesn't sound narrow, Frink went back to the company's point that the trademark application hasn't been opposed until now.

Dell's application for the cloud computing trademark 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 application 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. Peter S. Sloane, an attorney at Ostrolenk Faber LLP, an intellectual property law firm in New York, said in an e-mail that third parties "can still petition to cancel the registration on the ground that the mark is merely descriptive."

Sloane added that Wikipedia defines cloud computing "as a 'style' of computing and a 'general concept.' These definitions are not consistent with any claim to exclusivity of the term as a trademark."

Joe Englander, an intellectual property attorney at Shutts & Bowen LLP in Fort Lauderdale, Fla., also sees challenges ahead for the trademark if it is granted. The term cloud computing is "generic" for computers that are connected to the Internet, he said.

Copyright © 2008 IDG Communications, Inc.

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